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1、Constitutional Law (33 Qs)I. Judicial Power 司法权 Article III (15% of questions)A. Requirement for Cases and Controversies Justice Ability Doctrine对普通公民不能用军事法院审理（即便他是军队的EMPLYEE)，除非民事法院被关了1. Standing whether the plaintiff is the proper party to bring the matter to the court for adjudication 自身由于第三人的因素受
2、到伤害a. Injury: P must allege & prove that he has been injured or imminently will be injured P only may assert injures that he personally suffered(i) P seeking injunctive or declaratory relief must show a likelihood of future harm monetary interests are the strongest form of injuryTIP: If Q asks which
3、 has the best standing, look to a P who has personally suffered an injury. Then choose the one who has suffered an economic/monetary loss. b. Causation & Redressability P must allege & prove that D caused the injury, so that a favorable court decision is likely to redress纠正 the injury (NO “advisory
4、opinions”)c. NO 3rd party standing P cannot assert claims of others (3rd parties) who are not before the court- EXCEPTIONS:(a) Close relationship between P & the injured 3rd party (e.g., abortion cases brought by doctors on behalf of their patients)这个是指金钱关系上的密切，不是人身关系（比如W和H）(b) Injured 3rd party is
5、unlikely to be able to assert his own rights (e.g., criminal Ds can raise the rights of prospective juror in racial discrimination claim during jury selection)(c) “Associational” standing an organization may sue for its members, provided- Members would have standing to sue- Interests are germane密切相关
6、 to the organizations purpose- Neither the claim nor relief requires participation of individual membersd. NO generalized grievances P must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law (e.g. sued to disclose CIA budget no standing b/c suing onl
7、y as a citizen)TIP: Exam will say “P is suing as a taxpayer”(i) EXCEPTION taxpayers have standing to challenge government expenditures as violating the Establishment Clause只能根据TAX & SPENDING 条款(ii) BUT, taxpayers lack standing to challenge government granting of property to religious institutions/ p
8、arochial schools2. Ripeness 现实的争议问题/避免法院过早介入 can you get declaratory judgment that a law is unconstitutional? pre-enforcement review of a statute or regulation? 注意：见解律是不是已经通过了！Proposed/或者有过渡期(GRACE PERIOD)才执行的法律都属于未成熟的！TIP: If Q talks about declaratory judgement, this is likely a ripeness issue.a. H
9、ardship will be suffered without pre-enforcement review: the greater the hardship, the more likely the court will allow declaratory judgmentb. Fitness of the issues & the record for judicial review does the fed court have all it needs to decide the issue, or should it wait for more factual developme
10、nt? Is anything to be gained by waiting for an actual prosecution?3. Mootness 正在进行的而未消失的 must be an ongoing injury (if events after the filing of the lawsuit end Ps injury, its moot)- EXCEPTIONS:(i) Wrong capable of repetition but evading review e.g. an abortion case was decided after P had her abor
11、tion because P could seek an abortion in the future (Roe v Wade)比如选举权等(ii) Voluntary cessation of offending practice, but D is legally free to resume it at any time(iii) Class action suits wont be dismissed as long as 1 member of the class has an ongoing injury4. Political Question Doctrine refers t
12、o allegations of constitutional violations that the federal courts (and level) will not adjudicate (matters left to political branch or inherently incapable of judicial resolution); e.g.:a. Cases under the “republican form of government clause”b. Challenges to the Presidents conduct of foreign polic
13、yc. Challenges to the impeachment & removal processd. Challenges to partisan gerrymandering党派选区划分B. Supreme Court Review 最高法院的裁判权1. Appellate Jurisdiction议会可以对其作为上诉法院的审判权作出限制的，但不能所有取消！但不能对其作为原审法院的审判权作出限制，当然也不能扩大假如是审理州最高法院上诉而来的案子，必须是涉及到联邦法律问题的（解释联邦法律和直接合用联邦法律都算）！（州法律和联邦法律内容是不是同样无所谓）假如联邦法院没法判断案子是不是涉及联
14、邦问题，一般会DISMISS然后让州法院重审/假如确涉及到联邦问题，法院可以撤消，然后让州法院再根据州法律判。a. Writ of Certiorari all cases from (i) highest state courts, & (ii) U.S. federal court of appeals. 4 justices must agree to grant Certiorari in order for the case to be heard (completely discretionary)b. Appeal for decisions of 3-judge federal
15、 district courts (appeals skip the U.S. federal court of appeals). Supreme Court is obligated to take the case. The scope of appellate is subject to limitation of congress, though congress cannot take away as a whole.2. Original Jurisdiction suits between states & cases involving ambassadors/public
16、minister/conselur 3. Exclusive jurisdiction suits between states/involving a state4. Final Judgment Rule - NO interlocutory review by Supreme Court may hear cases only after there has been a final judgment. 5. For Supreme Court to review a state court decision, there must NOT be an independent & ade
17、quate state law ground of decision Supreme Court will not hear a case only if the independent state ground is adequate by itself to support the decisionTIP: Rodney King sues in state court state law battery claim and federal law civil rights claim and each claim will result in the same amount of dam
18、ages. P wins. D sues all the way up to Supreme Court. No good, because same judgment would occur from the state law ground even if the federal ground was overturned.C. Lower Federal Court Review 低档联邦法院的审判权-对州的审判权1. Federal courts may not hear suits against state governments (11th Amendment) 是指公民或外国政
19、府起诉州！联邦和其他州是可以起诉州的2. Sovereign immunity bars suits against states in state courts or federal agencies. EXCEPTa. Waiver is permitted (i.e., the state consents)b. States may be sued pursuant to federal laws adopted under 5 of the 14th Amendment Congress may adopt laws “to enforce” the 14th Amendment,
20、limiting state sovereignty (like Title VII (1964 Civil Rights Act) cases) c. Federal government may sue state governments sovereign immunity doesnt bar this d. Suits against state officers are allowed;可以起诉官员的，但国库不能赔付过去的损害；可以起诉规定未来的利益。(i) State officers may be sued for injunctive relief;(ii) State of
21、ficers may be sued for money damages to be paid out of their own pockets(iii) BUT, state officers may not be sued if it is the state treasury that will be paying retroactive damages3. Abstention federal courts may not enjoin pending state court proceedings 4. NOTE: Congress has exclusive control ove
22、r the jurisdiction except the Supreme Court =II. Legislative Power 立法权(10% if questions)A. Enumerated & Implied Powers1. Must be express or implied Congressional power- No general fed police power there is, however, police power for MILD:(i) Military; (ii) Indian reservations; (iii) Fed Lands and te
23、rritories; (iv) D.C.2. Necessary & proper clause 不能独立合用！必须题干中出现另一个权力 Congress can use any means not prohibited by the Constitution to carry out its authority (this clause standing alone cannot support law, thus must work in conjunction with other power)3. Taxing / Spending Power & the Commerce Claus
24、e 很重要联邦自身是没有general police 的权力的，假如选项说基于其对公民安全、健康、福利的权力通常是错误的/州才有对居住性的不动产征税 ： 不能对印第安保存区a. TAXING AND SPENDING POWER一般和general welfare 相联系 Congress may tax & spend for the general welfare as it sees fit Congress may condition grants under spending power even where it cannot directly regulateb. Commerc
25、e Power includes 3 things: 都关于洲际贸易权力很大；万金油/可以对州工人的工资作出规定。(i) May regulate the channels (places) of interstate commerce (highways, waterways, internet); or(ii) May regulate the instrumentalities of, and persons or things in interstate commerce (trucks, phones, planes); or(iii) May regulate activities
26、 that have a substantial effect on interstate commerce (it is legal to regulate amout of wheat farmers could grow for their own home consumption (b/c of cumulative effect on commerce), however if it is non-economic activity, Congress cannot base their decision on a cumulative effect) 4. 10th Amendme
27、nt as a limit on Congressional powers all powers not granted to the US, nor prohibited to the states, are reserved to the states, or to the peoplea. Congress cant compel state regulatory or legislative action BUT Congress can induce state action by attaching strings to grantsb. Congress may prohibit
28、 harmful commercial activity by state governments c. Congress CAN preempt state/local actions by setting standards state/local governments must meet 5. Congress power under 5 of the 14th Amendmenta. Congress may NOT create new rights or expand the scope of rights under 5 of the 14th Amendmentb. Cong
29、ress may only provide additional remedies for rights recognized by courts those remedies must be narrowly tailored (proportionate & congruent) B. Delegation of Powers委托权很广泛；但一旦授予给行政机关，且行政机关依法行使了权力；立法机关若要否决必须两院通过1. Delegation of legislative powers NO limit exists on Congress ability to delegate legis
30、lative power to executive agencies or even to the judiciary (clear criteria & intelligible principles must be provided). TIP: On exam, if Q says fed law is unconstitutional, it will never be because of delegation of legislative powers. 2. Legislative vetoes & Line-item vetoes（部分通过部分否决） are Unconstit
31、utional to enact a law, need bicameralism两院制 & presentment to the President, who must then sign or veto the bill in its entirety a. Legislative veto立法否决违反三权分立 when Congress tries to overturn an executive action without bicameralism or presentment with the vote of just 1 house of Congress (unconstitu
32、tional) b. Line-item vetoes President attempts to veto part of a bill and sign the rest of law (unconstitutional)3. Congress cant delegate executive power to itself or its officers Congress can give its powers but cannot take others powers (e.g. Congress may NOT appoint members of a commission or ag
33、ency with administrative powers)=III. Executive Power 行政权(10% if questions)A. Foreign Policy1. Commander-in-Chief President has broad powers to use troops in foreign countries (case dismissed as political question or president wins because president has broad powers as commander in chief in domestic
34、 affairs)军事权是总统和议会分享的，前者可以由于任何因素派遣部队；后者有宣布战争权。2. Foreign affairs paramount power, but shared with Congress (non-justiciable & inappropriate for judicial consideration); Congress has plenary绝对 power over foreign commerce州法律若涉及到外国商业，也许无效3. Treaties agreements between the US & a foreign country that ar
35、e negotiated by the President & are effective when ratified by the Senate- State laws that conflict with treaties are invalid - Treaties prevail over conflicting state laws.- If a treaty conflicts with a federal statute, the one adopted last in time controls.- If a treaty conflicts with the United S
36、tates Constitution, it is invalid.4. Executive agreements 不需议会批准！只比州法律牛逼 an agreement between the US & a foreign country that is effective when signed by the President & the head of the foreign nation; NO Senate approval is required- Executive agreements can be used for any purpose.- Executive agree
37、ments prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.B. Domestic Affairs1. Appointment & removal power貌似没怎么出现过a. Appointment Power: (i) Officers Senate must approve (e.g. ambassadors, fed judges, & officers of the US)(ii) Inferior Officers Congress m
38、ay vest appointment in the President appointment(a) Congress has some discretion in appointing inferior officers, & may vest the appointment of independent counsel in the lower federal courts(b) Congress may not give itself or its officers the appointment power (that power is executive) (i.e. Congre
39、ss cannot create a new executive agency where Congress appoints some of the members)b. Removal Power unless removal is limited by statute, President may fire any executive branch official (i) For Congress to limit removal power, it must be an office where independence from the President is desirable
40、 (i.e., it can limit removal of independent counsel, but not cabinet members)(ii) Congress cannot prohibit removal, but can limit removal to good cause this applies even to officers who should be independent from the President 2. Impeachment & removal:弹劾/民事审判 和刑事审判由于一个事由加诸在同一个人身上不算“一事二理” (i) the Pre
41、sident, (ii) Vice President, (iii) fed judges & (iv) officers of the US can be impeached & removed from office for treason, bribery or for high crimes & misdemeanorsa. Impeachment doesnt remove a person from office it just means that there will be a trial in the Senate b. Impeachment by the House 众议
42、院requires a majority vote, while conviction in Senate参议员 requires 2/3 vote3. Executive Immunity absolute immunity to civil suits for money damages while in office BUT, President does not have immunity for actions that occurred prior to taking office4. Executive privilege 总统的文献和谈话有行政特权，但若有刑事案件的证据的需要，
43、也许还是需要公开。 议会根据立法需要而调查某些受保护的信息的权力也很宽泛/除非被调查人能证明其掌握的信息不也许成为议会立法的对象。 applies to presidential papers & conversations, but such privilege must yield to other government interests (not absolute) i.e. need for evidence in a criminal trial (Watergate)5. Power to pardon赦免 只针对联邦/刑事案件/BUT not for impeachment a
44、. President may pardon only for fed crimes, NOT state crimesb. President may pardon only for criminal liability, NOT civil liability=IV. Federalism (20% of questions)A. Preemption under supremacy clause federal law preempts state law, even if non-conflicting (4-6 questions on BAR)1. Express preempti
45、on if federal law is exclusive in a field, state & local law deemed preempted2. Implied preemption 通常此时联邦的法律很全面或者有有一个全国性的机构负责执行；若议会只针对某一事项的某一方面做出规定，则不算对州法律的排斥。假如联邦法院已经PREEMPTION了，就算州是制定支持其的法律也不行/不行就是不行，跟州有没有COMPELLING INTEREST 没什么关系！ even if text of federal law is silent, implied preemption in 3 way
46、s:a. If federal & state law are mutually exclusive, fed law preempts state law cant comply with both state & federal law, the fed law wins - ONE EXCEPTION states can establish environmental (or health and safety) regulations stricter than federal law unless Congress clearly forbids it.b. If state la
47、w impedes the achievement of a federal objective, fed law preempts state law c. If Congress evidences a clear intent to preempt state law, fed law preempts state (i.e. Immigration Law any attempt by a state of local govt to regulate immigration is preempted)3. States may not tax or regulate federal government activity 不能直接对联邦政府、机构征税；但可以对联邦协议的另一方当事人征税，只要没有对联邦导致显著的承担。a. “Inter-governmental i