The entire judiciary has the power to say what the law is (power of judicial review).  (Marbury v. Madison)

1. It has the power to review and reverse state rulings under federal law.  (Martin v. Hunter's Lessee)

2. It has the power of appellate review over the validity of state law in civil or criminal proceedings.  (Cohens v. Virginia)

3. The Supreme Court's decisions bind everyone.  They are the supreme law of the land.  (Cooper v. Aaron).

1. Judicial selection.

2. Impeachment.

3. Court Packing.

4. Court Stripping.

5. Constitutional Amendment. 

1. Advisory Opinions

2. Standing

3. Mootness

4. Ripeness

5. Political Question 

Standing requires:

1. an injury in fact (actual or imminent)

2. causal link between the injury and the conduct complained of.

3. redressability. 

1. If your claimed injury if from the government not following the law, Lujan tells us your claim is not valid under Article III.  Proper recourse is to elect new officials.
2. If you have a taxpayer not happy about how taxes are being spent, some additional concrete injury is required, this alone will not give you standing.
3. From Flast, if you have an unhappy taxpayer where the federal government is violating the establishment clause, then you have standing, but it appears to be limited to its facts.  We don’t know what a majority of the court would say.

1. This is an injury that can get you into court, but something happens to take the injury away like setting the dispute or the injury has been redressed.
2. There are two exceptions:                             
   
   1. Capable of repetition yet evading review
   2. Voluntary cessation of challenged conduct where resumption is a possibility.

1. This is a question as to whether a case was brought to court too soon.

2. The requirements are:                            

1. Imminent

2. There has to be hardship to the

plaintiff in delaying review. 

The court will not decide political questions.

Political questions are:

1. Those issues committed by the Constitution to another branch of government or

2. those inherently incapable of resolution and enforcement by the judicial process. 

1. Article I, Section 8 grants Congress enumerated powers.

2. Auxillary power is granted under the Necessary and Proper clause, like the power to charter banks. (McCulloch v. Maryland) 

1. Use the test from US v. Lopez  or

2. the rational basis test or

3. BOTH 

1. Does it regulate the use of channels of interstate commerce?

2. Does it regulate the instrumentalities of commerce?

3. Does it regulate things that have a substantial effect on commerce? 

a. Economic or commercial?

b. Jurisdictional element?

c. Congressional formal findings?

d. Causal chain too attenuated? 

Use two transparancies:

1. Analyze like any other commerce clause issue.

2. Apply rules that are specific to state and local regulations. 

1. look at the powers delegated to congress, then say that if it is not delegated, per 10th amendment, it goes to the states
2. look to see if something should be part of state sovereignty, ask what it means, then go to article 1 and know that it does not authorize against sovereignty.

(a)    They have to make a clear statement saying that this is what they are doing.
(b)   Have to be acting pursuing to a valid source of power.

Valid source of power is not commerce clause or Article 1, it is 14th amendment, section 5. 

Not much, almost anything is allowed.

The minimum requirements are:

1. It has to be a tax for the general welfare.

2. The tax has to have a reasonable relationship to revenue production or

Congress has to have the power to regulate the taxed activity. 

(i)      There must be a congruence and proportionality between the court defined constitutional injury to be prevented or remedied and the means adopted to that end.
1.       Start by determining the court-defined constitutional violation.
2.       Then look to see how close the Congress law (statutory rights given to the public) is to the court-defined violation.

Put another way:

The law will fit into one of the following categories:

1.State laws that facially (on its face, read it) discriminate against out of state interests. – strict scrutiny.

1. Hughes v. Alexandria Scrap - Maryland allowed to discriminate between in-state and out-of-state tow truck and scrap processors because the state of Maryland opperated the scrap program.

2. Reeves, Inc. v. Stake - South Dakota allowed to sell cement from a state owned plant to only state residents.

3. White v. Massachusetts Council of Construction Employers, Inc. - Boston city construction requirement that at least 50% of workers have to be city residents.  This fits the market exception.

4. South-Central Timber Development, Inc. v. Wunnicke  - Alaska sells timber and tried to require purchasers to process the trees in Alaska per contract.  The court said this is facially discriminatory and does not fit the market exception because it had substantial regulatory effect outside of the particluar market furn by the state.

1^st opinion – rejects that the president has inherent power.  President only has power from a statute (constitutional from congress authority) or the constitution.  With the constitution is it law making or law executing. 

2^nd opinion – what has the President historically been able to do – tradition gives meaning to a text.  To know what our constitution is, we have to look more broadly than at the text.  When multiple presidents have done this, and it has become deeply imbedded (open, systematically, continuous – like adverse possession) and congress has not objected, then history has written a gloss on what the executive powers are.  

3^rd opinion – three categories.

Under Hamdi (2004), a US citizen was allowed habeas corpus and the following was decided:

Congress cannot delegate lawmaking power to anyone else.