• Under Art III, (not Art I tax courts) fed jux power extends to all cases involving: interpretation of CON, fed law, treaties, admiralty, maritime laws;
• Disputes btwn states, states and foreign citizens, and citizens of diverse citizenship

• Original jurix: cases affecting ambassadors, public ministers and those in which a state is a party; Cong has given lower fed courts juris to hear;
• Appellate Juris in all cases to which fed power extends subject to congre exceptions;
• Writ of Certiorari--most cases; encompassing: cases from state courts where CON of a fed statute, treaty, or statute statute is at issue; or where state statute allegedly violates fed law;
• All fed court cases;
• Cases on direct appeal from 3 judge fed dix court panels that grant or deny injunctive relief;

• No Advisory Opinions: must be a present harm, challenging an action that possess a real and immediate danger to their interests;
• P not entitled to review of a statute before its enforcement (Ripeness); not entitled to declaratory judgment;
• Real controversy must exist at all stages (Mootness); can't be already resolved, unless capable of repetition but evading review (abortion; or D voluntarily stops offending practice but capable of restarting).

Standing: a concrete stake in the outcome of a case; components:

• Injury (directly or personally; need not be economic)
• Causation: casual connection btwn injury and D's conduct;
• Redressability (A decision in litigant's favor must be capable of eliminating grievance);

• Congress no power to eliminate the case and controversy requirement; but a fed statute may create a new interest, such that injury may be sufficient for standing;
• If P within a fed statute's "zone of interests" Congress meant to protect--may have standing to enforce gov't statutes;
• Generally no third party standing to assert rights of others unless: claimant with standing in her own right can also assert rights of third party if: 1) difficult for TP to assert rights on her own (association can attack a law requiring disclosure of membership lists); 2) A special relationship exists (a doc can assert a patient's rights in challenging an abortion restriction);
• Organizations have standing if (i) injury related to organization's purpose, (ii) injury in fact to members; (iii) individual member participation in lawsuit not required;
• No Citizenship standing--injury too generalized;
• A taxpayer has standing to litigate her tax bill, but generally no standing to challenge a government expenditure, b/c taxpayer's interest too remote; exception: suits attacking congressional taxing and spending measures on First Amendment Establishment Clause grounds (e.g., congressional approved fed expenditures to aid parochial schools).

SC will not exercise j if the state court judgment based on adequate and Indie state grounds--even if federal issues involved.  State laws grnds are adequate if:

• they are fully dispositive of the case;
• they are indie if not based on fed case interpretations of identical federal provisions.
• Court may need to clearly indicate its decision rests on state law.

A fed crt will temp abstrain if disposition rests on unsettled que of state law

• Or if Pending State Proceedings (will not enjoin pending crim proceedings) except in cases of proven harassment or prosecutions taken in bad faith.
• No political questions about Pres' for policy or age limits in Congress;
• But will take questions on Legislative apportionment or arbitrary exclusion of a congressional delegate;

11th Amend prohibits federal courts (not state courts) from hearing a private party's or foreign government's claims against a state gov't;

• Prohibition extends to actions where state named as a party or will pay retroactive damages;
• doctrine of sovereign immunity bars suits against state gov't in state court, even on federal claims, unless the defendant state consents;
• suits against local gov't, actions by the US or other states, or fed bankruptcy courts not barred.

• actions to enjoin an officer from future conduct that violates the CON, or fed law, even if it will require a prospective payment from the state;
• actions against officer personally for damages;
• Congress can remove immunity as to actions created under the 14th Amendment; but  must be unmistakably clear that Congress intended to remove

• Standing (most imporant) - P must be proper party to bring a matter to the court for adjudication; must allege and prove he/she has suffered an injury in fact or imminenty will be inured;
• Ripeness - whether a fed crt may grant a pre-enforcement review of a statute or regulation
• Mootness - if events after the filing of a lawsuit end the P's injury, the case will be dismissed as moot;
• Political question doctrine - constitutional violations that the fed crt will not adjudicate

Injury (may only assert injuries that they personally suffered; economic better);

• P seekiong injunctive or declaratory relief must show a likelihood of future harm;
• P msut allege and prove that the D caused the injury so that a favorable court decision is likely to remedy injury (causation and redressability);
• No TP standing (unless P meets all requirements of standing himself and):
• a) close relationship btwn P and injured TP;
• b) TP unlikely to be able to assert his or her rights (and P has individual standing);
• c) organizational standing (can sue for members if):
• i) members would have standing to sue;
• ii) interests are germane to the organization's purpose;
• iii) neither the claim nor relief requires participation of the individual members;

Can't sue merely b/c a citizen or taxpayer interested in gov;t following the law;

• exception: taxpayers have standing to challenge gov't expenditures pursuant to federal statutes violating the Establishment clause.

May the federal court grant pre-enforcement review of a statute or regulation; (usu. way is to violate a law, be prosecute it, then argue that it is UNCON and invalid);

• but some people want a declaratory judgment that it is UNCON;
• ALWAYS consider ripeness when there is a request for declaratory judgment.
• ripeness: court looks at (i) hardship the P will suffer if declaratory judgment not provided and (ii) the fitness of the issues and the record for judicial review;
• Drug company v. FDA drug case - FDA attempting to have case for generics dismissed as not ripe, but SC said that the hardship (trying to comply and struck down; or not complying, and risking criminal prosecution), and the economic hardship, make it ripe for review.

If P's injury over, the case must be dismissed as moot, but exceptions: 

• exceptions: wrong capable of repetition but evading review; (the Roe v. Wade case, even though she was no longer pregnant; it was a wrong capable of repetition, but evading review, b/c the time for human gestation is shorter than the time for litigation, and she could be pregnant again in the future);
• voluntary cessation - if the D voluntarily halts the offending practice but free to resume, will not be dismissed;  an employer declaring it won't use a descriminatory test anymore, but legally still can;
• class action suits: if named P's claim b/cmes moot, won't be dismissed as long as 1 member of class has an ongoing injury;

• cases under Art IV sec 4 (the republican form of government clause): people would elect representatives, and the representatives will make the law; these are nonjusticiable (handle it in other branch) - case under local / state gov't, not under a republican form of gov't;
• Challenges of the President's conduct of foreign policy (the Pres wadging war w/o congressional declaration--poly que; same applies to someone saying that the senate has to approve of us withdrawing from a treaty - poly que, will be dismissed;
• Challenges to the impeachment and removal process - Nixon objected to the subcommittee of a senate making recommendations to the whole senate--poly dismissed;
• Challenges to partisan gerrymandering - nonjusticiable poly que. 2004, 2006 - will be dismissed;

• all justiciability requirements met, and:
• by writ of certiorari (mostly); need 4 votes - even cases from supreme court of state (discretionary);
• all cases in the U.S. court of appeals come by writ of cert (discretionary review);
• appeals to supreme court - (wherever a statute says that a type of case can go to SC by direct appeal) - SC has to take;
• now, only via three-judge federal district court (like the federal voting act);  if appeal review is requested, it skips the COURT OF APPEAL and goes to the Supreme Court - IT IS OBLIGATED TO TAKE.

generally no interlocutory review in the SC;

• all appeals must be exhausted (no concurrent appeal or process going on in state or other federal court)

• If
• If a person beat up by LA police officers and sues in Cali state court, bringing 2 claims: 1) federal claim: excessive police forth violates the 4th amendments; 2) a state battery claim; if the P wins $100k (under eithe the federal or state law claim, but not both) and the D's appeal to a state court and lose; now they want US SC review;
• But the SC court can only decide issues of federal law; so if it is on a basis of the state law claim, SC can't review b/c even if the SC ruled on the 4th amendment issue, the P would still win (so there is an adequate and independent state law ground and the SC will not review)

• State court gets the final word on state law claim, unless there is a conflict with federal law;

• 11th Amendment (and principle of soverign immunity) bars suits of state gov't being sued in federal court;
• Federal and state courts MAY NOT hear suits against state gov't
• Alden v. Maine: overtime pay case and suing to get money owed under the federal fair labor act--thrown out;
• Also SC also said, state gov't can't be sued in state court w/o their consent;
• they had a federa statute but couldn't sue;
• exceptions: 

• Explicit waiver (not implicit)
• section 5 of the 14th Amendment - meant to be a limit on state and local governments; only one that Congress can authorize suits against states--civil rights act title VII--states can be sued for violating title VII;
• the federal age descrimination act was adopted pursuant to commece clause, so a person cannot sue a state gov't pursant to it;
• sovreign immunity does not stop the fed gov't from suiting a state govt;
• and bankruptcy proceedings not protected by 11th amendment (state can be used in bankruptcy court);
• State officers can be sued for injunctive relief, (or out of there own pocket) but DO NOT NAME THE STATE IN THE SUIT; name the officer, where the officer is personally liable for paying the damages, but not where state treasury will pay the retroactive  (then soverign immunity is a bar)

federal court may not enjoin pending state court proceedings (fed court has jurisdiction, but will not take case)

• Chemierinski filing a case in state court proceeding and also a fed crt proceedings on 1st Amendment;

• no general federal police power (only states and local gov't do); only exceptions: 1) legislating for the military, 2) for Indian reservations; for 3) federal lands or territories; or 4) district of columbia; (nemonic: MILD)
• must point to a particular statute;
• necessary and proper clause (Art I sec 8): Cong may enact all laws that are necessary and proper to carry out its authority (any means not prohibited by the Cong)

The 3 most important of all Congress's powers;

Congress may tax and spend for the general welfare;

• If you see general welfare in an answer choice, unless the question involves an area that Congress has police power, or it involves taxing and spending;

Art I section 8: Congress may regulate congress with foreign nations, indian tries, and among the states;

• US v. Lopez (federal gun free school zone act; federal crime having a gun w/n 1000 feet of a school zone); 
• Congress may act in 1 of 3 situations: i) regulate the channels of interstate commerce (highways, waterways, the internet);
• ii) the instrumentalities of IC (the things that faciliate it; trucks, planes, the internet);
• iii) persons or things (Gibbs v. Ogden): electricity, radio waves, b/c they go across state lines; stock, insurance (if it goes across state lines)
• Things which have a substantial impact on interstate commerce (US v. Wickerd)

Gonzales v. Resh: whether Cong could prohibit and punish small amounts of maurijana; growing mj is economic activity, and looking at it cumulative impact;

• US v. Morison: but if it does not involve inherently economic acitivity (like gender motivated violence costing billions of dollar); SC said no: Congress is regulating non-econ activity; in this case, substantial effect cannot be based upon cummulative impact across the country 

• Congress cannot comple state regulatory or legislative action;
• but Congress can induce state gov't action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose spending (21 year old drinking age case and any state wanting federal money for its highways); the condition is clearly stated and relates to the purpose of the program 
• Congress can't compender the states or conscript the states (the radioactive waste in NY, and they will take possession if they do not act)

Congress may act only to prevent or remedy violations recognized by the courts and such laws must be "proportionate" and "congruent" to remedying constituional violations.

• Citizen of Brunez v. Flores - congress cannot create new rights under sec 5 of the 14th Amend; all it can do is to act to prevent or remedy violation rights ALL READY RECOGNIZED BY COURTS or provided by Congress; if attempts to do otherwise, it will fail.

• No limit exists on Congress' ability to delegate;
• It doesn't matter how broad the delegation is; every one has been upheld, as long as: 

• must be bicameralism and presentment;
• legis veto--congress attempt so overturn a presidential action (like a new agency rule) w/o bicameralism and presentment; (can't do it with only one house of congress;
• or both house of congress, but does not present to the president;

• treaties negotiated by the Pres and are effective when ratified by the Senate;
• state laws conficting with treaties are invalid;
• Conflict between treaty and federal statute--last in time controls.
• Treaties are invalid if in conflict with the CON

• An agreement btwn US and a foreign country; do not require Senate approval (if called a treaty, the Senate has to ratify; but if called an EA, no senate approval)
• Can be used for any purpose (anything done by a treaty, can be done by a EA; nothing struck down as usurping the senate's power);
• EA's prevail over conflicting state laws, but not federal laws.

• President appoints ambassadors, fed judges, and officers of the US, but the senate must approval;
• Congress may vest the appointment of inferior officers in the President, the heads of dept, or the lower federal courts (an inferior officer is one who can be fired by departments; the Sec of Defense can fire the undersecretary, the Attorney General can fire lower attorey general;
• Congress has some disrection with respect to who they can give the appointment power to (AS LONG AS IT IS NOT GIVEN TO CONGRESS); it can give it to dept heads, and the president (this type of executive power); it CAN GIVE IT TO ITSELF.

• Unless removal is limited by statute, the Pres may fire any executive branch office.

Congress by statute can limit removal, as long as 2 requirements are met:

(i) must be an office where independence from the President is desirable (like the independent counsel...exists to investigate the president) but by contrast, can't limit removal of the Pre's cabinet;

(ii) the statute MUST NOT PROHIBIT removal; but it can say removal is allowed only if good cause is shown;

• The Pres, the VP, federal judgments, and officers of the US can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors;
• the House of Reps can impeach, but only the senate can remove someone from office;
• Impeachment in the house requires a majority vote; conviction in the senate requires a 2/3 vote.

• Absolute immunity to civil suits for money damages during office;
• no immunity for actions occurin prior to taking office;
• executive privilege: for presidential papers and conversations, but such privilege must yield to other important government interests.
• Pres has executive privilege, but it is not absolute; exec privilege must yield when there is an overriding need for the information; (Nixon) the need for evidence at a criminal trial outweight exec privilege.

The Pres has power to pardon those accused or convicted of federal crimes (NOT STATE law crimes);

• Also, Pres cannot pardon for civil liability (like a civil contempt by a judge on a person); the Pres can only pardon for criminal fed liability, not civil.

• Supremacy Clause of Art VI provides that the CON and laws and treaties made pusuant to it, are the supreme law of the land.  Different types of preemption.  If there is a confict btwn federal and state law; 
• (1) express preemption: A fed statute SAYS that FED LAW IS EXCLUSIVE; then state and local laws are preempted.  
• (2) Implied preemption: even if fed statute is silent about preemption, implied preemption can be found: (a) if fed law and state law are mutually exclusive, state law is deemed preempted;  the case of fed law saying maple bottle must have a label stating its ingredients, but WI saying no it does; WI loses; 
• Also, states may set environmental law more strict than federal act, unless Congress forbids;
• (3) if the state law impedes a federal objective, it will be deemed preempted.  Case of FL punishing people who filed federal labor laws;
• (4) If Congress through its legislative history expresses a clear desire to preempt state and local laws, they will be deemed preempted; case of immigration laws--legislative intent to wholely occupy the field;
• (5) States may not tax or regulate federal activity.  State tax on US gov't bank--UNCON;
• It is UNCON to pay a state tax out of the federal treasury. 
• But state can tax a mom and pop store on fedeal land, yes, b/c the tax liability will be legally owed by a private entity; but it cannot tax a PX b/c owned by the fed gov;t
• States cannot regulate the fed gov't b/c it would be placing a significant burden on fed activity; fed gov't does not have to comply with state environmental law.

• fed gov't can't be taxed, regulated by the state

States cannot regulate the fed gov't b/c it would be placing a significant burden on fed activity; fed gov'tdoes not have to comply with state environmental law.

3 concepts:

• Dormant commerce clause: a state or local law is UNCON if it places an undue burden on interstate commerce; not directy said in the CON, but even if Congress has not acted, a state or local law will be deemed UNCON if it places an undue burden on interstate commerce;
• DCC: authority of congress to act and a limit on what state and local congress can do;

DCC: authority of congress to act and a limit on what state and local congress can do;

• If the Q involves something congress is doing? look to the powers of congress (first 1/2 of class materials);
• If it involves state or local gov't; look for an answer involving the 'negative commerce clause)

No state may deprive citizens of another state of the privleges and immunities of its own citizens;

• Also, the privileges and immunities clause of the 14th Amendment (ALWAYS A WRONG ANSWER; unless it involves the right to travel); - b/c it is designed to protect people of discrimination from its own gov't
• Case of Cali descrimining against its newer residents (welfare benefits will be at MI level for a person who just got there, for 1 year); SC said this chills their fundamental right to travel;
• Its either the priv and immunity clause of Art IV v. 14th Amendment

Whenever you have a que on the bar about DCC or PIC

Start with: 1) Does the state or local law discriminate against out of staters or does it treat them alike; a) truck length and width laws - not discrmin b/c they applied to all trucks, whether in or out of state;

but Phili v. NJ law--no out of state garbarge could be buried in NJ garbages--blatently discrmintory; favoring in state residents v. out of stators;

also, the Cali v. MI winery and the tax on out of stators;

2) It doesn't descriminate against out of staters?  Then Art IV PIC does not apply; 

BUT if the law puts a burden on interstate commerce it will be found to violate the DCC if the burden on IC is not outweighed by the benefits to the state, then it will be struck down; the straight v. curved mudguard case; 1st part of analysis: not discrminatory b/c all trucks treated the same; but 2) it put an undue burden on IC, b/c it would put an undue burden on out of state truckers who would have to change mud guards at the border; no safety benefit obtained...

If the law puts a burdern on IC, it will deemed to violate the DCC unless it is necessary to achieve an important gov't purpose; protectionist purposes will never be deemed sufficient (only one case when it did: Maine v. Taylor: prohibiting the importation of out of state fish into Maine b/c they thought it may have parasites; gov't had an imp interest in preserving its natural resources; must also show it is necessary (no less descriminatory alternative can achieve its objective);

• Exception: Congressional approval (once Congress has acted, its no longer dormant); 
• Exception: The Market Particpant exception: a state or local gov't may prefer its own citizens in receiving benefits from gov't programs or in dealing with gov'-owned business;
• U of C can charge less tuition to in-staters but more to out of staters (market participant exception--a gov't benefit program; can benefit in-staters who have long paid in-state taxes); thus, b/c of MP exception, does not violate the DCC;
• But if it was regarding private Universities, it would violate DCC;
• State of 

• In order for it to be a PIC Art IV claim:
• (i) must be discrimination against out of staters;
• (ii) the discrimination MUST involve civil liberities- when a state or local gov't discriminates against OOS in ability to earn their livelihood;  S carolina law descriminating against commerical fishers (in state license $25; out of stateer $1200)--descrimination; or New Hamphsire law saying that: you had to be a resident of New Hampshire in order to be a member of the bar - UNCON under the PIC;
• But: the elk hunting license in Montana and the difference in in-state and out-of-state difference--elk hunting is a HOBBY; it has nothing to do with earning a living, so it does not violate the PIC.

• will be struck don unless it is necessary to achieve an important gov't purpose; gov't will have to show that descrimination is necessary, and no less descriminatory alternative can achieve its purpose; 

• States may not use their tax systems to help in-state businesses;
• A state may only tax activities if there is a substantial nexus to the state
• State taxation of interstate businesses must be fairly apportioned.   So CA can tax the percentage of miles or revenues earned from a mult-state trucking company, as long as the state is only taxing what is connected to it, not all activity;

• 1) Court rendering judgment must have had jurisdiction over the parties and the subject matter;
• 2) The judgment was on the merits;
• 3) The judgment is final.

1) 1st Question: IS there government action?  Private conduct does not have to comply with the Constitution.

• Giving a speech at Duke University (a private university), and a person gives a speech criticising the President and he was fired; he could not sue on 1st Amendment grounds; but if he were at a public university, and he sued, he would have standing;
• Freedom of speech means that the gov't can't infringe your 1st Amendment right (all levels, federal, state, and local; federal officials at all levels); private conduct does not have to comply.

• can insist that private actors 
• Pursuant to the 13th Amend- Congress may prohibited private conduct (descrimination); people cannot be or own slaves; section II authorizes congress to enforce it--broad power to prohibit private the badges and incidents of slavery; 
• Descrimination never violates the 13th Amendment, only slavery can;
• Descrimination can violate federal statute adopted by Congress under the 13th Amendment;
• Pursuant to the commerce clause, Congress can apply constitutional norms to private conduct (hotels and restaurants)
• A BBQ restaurant not prat of interstate commerce; the SC said that a great deal of its supplies come across state lines, all of the restaurants engaging in descrimination, Congress could use its commerce clause power to regulate private behavior;
• But Congress cannot use sec 5 of the 14th Amendment to regulate private behavior.

If the private entity is performing a task traditionally, exclusively done by the gov't (like private companies holding the primaries) the SC said no;

• Jackson - the privately owned utility company went to terminate a person's service; A gov't utility has to first give due process (notice and a hearing); so the customer said, that if a private entity is doing it, they should have to provide due process (SC said no, b/c running a utility is not an area that traditionally and exclusively done by the gov't.
• The entanglement exception:  the Con applies if the gov't affirmatively authorizes, encourages, or facilitates UNCON activity.
• (i) courts cannot enforce racially restrictive covenants. 
• (ii) there is state action when the gov't leases premises to a restaurants that racially discriminates. (it impliedly authorizes it; the restaurant has to either leave private property or stop descrimination);
• (iii) there is state action when a state provides books to schools that racially discriminates--Mississippi giving free schools to private all white schools; they either stop descrimination, or the state gov't can't give books;
• (iv) there is not state action when a private school that is over 99% funded by the government fires a teacher because of her speech.  Difference is: the court (in private situation) the state is acting to encourage descrimination; but it is not acting to encourage firing teachers; Gov't subsidy is insufficient for finding state action.
• 
  

Also, if the issue involves race, the court appears willing to apply entanglement; but when not, it will not find state action;

• there is state action when a private entity regulates interscholastic sports within a state;
• High School says they should be given due process before they are sanctioned; the court pointed to the entwinment (85% of the members of the TN athetlic association where employed at public schools; 90% of its funds came from public funds);
• There is no state action when the NCAA orders the suspension of a basketball coach at a state university;

• technically only applies to Fed Gov't
• But it was applied to the state and local gov't through the incorporation into the due process clause of the 14th Amendment; the SC has found that (nearly 1 by 1), every Bill of Rights is incorporated into DPC of the 14th Amendment (even 2nd Amendment right in city of chicago)
• Except: 3rd amendment right to not have a soldier quartered in a person's home;
• 5th Amendment right to grand jury indictment in criminal cases (in order for a person to be indicte in federal court, it has to first have a grand jury trial); states do not have to comply;
• 7th Amendment right to jury and civil cases;
• 8th Amendment right against excessive fines (although cruel and unusal punishment prohibition has been incorporated)

1. Rational Basis Test: a law will be upheld if it is rationally related to a legitimate government purpose. (only has to be legitimate or permissible; only have to have a conceivable purpose, not actual);

• the means choosen only have to be rational; the burden of proof is on the challenger; will be upheld unless the challenger can show that there is no conceivable legitimate government purpose, or there is no rationally related to it;

2.  Intermediate Scrutiny - law will be upheld if it is substantially related to an important government purpose;  court has to be persuaded that gov't actual objective is important; and the means choosen have to be found to be substantially related (that the means be narrowly tailored to achieve its purpose); still doesn't have to be the least restrictive; 

the gov't has the burden of proof; the law will be upheld only if the gov't can show that it is substantially related to an important gov't purpose.

3.  Strict Scrutiny - law will only be upheld if it is necessary to achieve a compelling gov't purpose; court will look only at the gov't ACTUAL purpose; the means must be demonstrated to be necessary to achieve the objective; in order for the gov't to show that the means are necessary it has to demonstrate that no less restrictive alternative can achieve its objective; the means have to be necessary; no less restrictive alternative can be avaiable; gov' t usually loses.