1.

Executive Authority
a. Scope of Power – enumerated and developed
i. Tiers of power (youngstown steel seizure)
1. Highest
a. Congressional approval
i. Express or implied
ii. Exception
1. Line item veto
iii. Twilight zone
1. Congressional silence
iv. Lowest
1. Congressional disapproval
2. Article 2 powers only
ii. Law suits
1. Can't be held liable for what he does as part of his presidential
duties (nixon v fitzgerald fire the department head)
2. Can be held liable for stuff done before he was president (clinton v
jones sexual harassment)
a. Only after presidency is over
iii. Foreign affairs
1. Inherent to office (Curtiss Wright)
b. Checks on Power
i. Impeachment
ii. War powers resolution 1973
1. Use of military force
a. Notification of congress
i. 48 hours
ii. Why where how when
iii. 60 days to declare war
1. AUMF
a. Authorization of use of military
force
c. Administrative Law
i. Congress delegating power to the President
1. Lead to awkward situations for congress
a. Chevron line
i. Statute ambiguous will defer to reasonable
resolution of ambiguity by agency charged with
administering
ii. Foreign affairs
1. Immigration law (Chadha)
a. ALJs
2. Country recognition (Zivotofsky)
a. Ex: president wont recognize israel owning jerusalem but
congress does
 iii. Appointments, Removals, and Impeachment
1. President can fire any executive official
a. Unless congress limits removal by statute
i. If it is an office that is supposed to be non partisan
1. And the statute does not prohibit removal
but limits it to good cause
2. And the statute does not keep the president
from firing officials where there is good
cause
2. Federal Judicial Power
a. Power to review
b. Limits on Justiciability
i. Case or controversy or advisory opinion
1. Why no advisory opinion
a. Too much interpretation and shouldn’t be binding
b. Textual reasoning
i. Article 3 section 2 (article 3 standing)
2. Authority
a. Limits
i. The modes of interpretation
ii. Standing
1. Article 3 standing
a. Injury
i. Good
1. Personal
2. Particularized
3. Concrete or tangible
4. Actual or imminent
ii. Bad
1. General or taxpayer
2. Remote or attenuated
3. Ideological
b. Causation
i. But for or fairly traceable
c. Redressability
i. Can the court fix the problem with a legal remedy
2. Prudential standing
a. Third party standing
i. Usually doesn't work
 1. Unless special relationship like dr/patient
(Singleton v wulff medicaid dr cant give
abortion)
2. Unless a state is the plaintiff (Massachusetts
v. EPA costal erosion)
b. Generalized grievances/Taxpayer standing
i. Under Article III of the Constitution, a party does
not have standing to litigate a generalized grievance
against the government in federal court if she
suffered no personal injury other than the harm
suffered by all citizens. (Lujan v defenders of
wildlife animals are going extinct)
iii. Ripeness
1. Facts of the case have matured into an actual controversy
iv. Mootness
1. Relevant issues have already been resolved outside of court
v. Political question doctrine
1. Issues are political at heart
2. Considerations
a. Easier
i. Is there a “textually demonstrable constitutional
commitment of the issue to a coordinated political
branch”?
ii. Will there be a “lack of judicially discoverable
standards”?
b. Harder
i. Will it be an “impossibility for a court to
independently resolve the case without expressing a
lack of respect for a coordinate branch of the
government”?
ii. Is there the “impossibility of deciding the issue
without an initial policy decision which is beyond
the discretion of the court”?
iii. Is there an “unusual need for unquestioning
adherence to a political decision”?
iv. Is there the “potentiality of embarrassment from
multifarious pronouncements by various
departments on one question”?
3. Legislative Authority
a. Enumerated powers
i. Necessary and Proper Clause
 1. Is the means being used here appropriate and permissible
(McCulloch taxing the national bank)
2. Onion of necessary and proper rules
a. Congress can make federal crimes and prisons
b. They can regulate those prisons
c. Should guarantee safety of citizens upon release
3. Maybe they should only use explicit powers
a. States can do this
b. Shouldn't congress be restricted to the law of nations?
ii. Commerce Clause
1. Regulation of commerce “among” the states
a. Between or all?
i. Regulated action must have substantial effect
2. Must determine if the action affects interstate commerce
a. Wickard (wheat in dustbowl)
i. Need substantial effect
ii. Activity directly related to commerce
iii. Purpose of the act regulation
iv. Aggregate effects have a substantial effect on
interstate commerce
b. Lopex (gun control/kids with guns) Substantial effects test
i. Congress can regulate use of channels of interstate
commerce under commerce clause
ii. Congress is empowered to regulate and protect the
instrumentalities of interstate commerce even if the
threat comes from intrastate activities
iii. Congress can regulate those activities having a
substantial relation to interstate commerce
iii. Taxing and Spending Clause
1. Power to tax (Sebelius medicaid expansion)
a. General welfare
b. How do we know if it's a tax
i. Are we taxing or penalizing
1. If penalizing use another power
2. Penalty
a. Really a fine for non-compliance
b. The statute uses the word
“requirement” and the mandatory
“shall.”
c. Congress explicitly called it a
“penalty.”
 ii. If it looks like a tax and feels like a tax it's probably
a tax
1. Generating revenue
2. Paid to irs
3. Function over name
2. Limits (dole interstate highway drinking funds)
a. Must be for the General Welfare (courts defer substantially
to the legislature)
b. Must have clear, unambiguous conditions
c. Conditions on federal grants might be illegitimate if they
are unrelated “to the federal interest in particular national
projects or programs”
d. Other constitutional provisions might be an independent
bar
e. Conditions can’t be too coercive
iv. Other enumerated powers
4. Federalism
a. 10th Amendment
i. States ability to self govern
1. Somethings the feds should have no say in
a. Ex: moving the state capital or state employment
commission wants 12 people and feds want 13
ii. Anti-commandeering
1. Can not compel states to enact federal regulations only encourage
(NY v US)
2. Can not compel state officials to enact regulations (Printz)
a. Can induce by offering funding
b. Can’t induce by withholding funding
3. Feds can regulate activities that the states participate in using
commerce clause (Reno v Condon)
b. Impact of Reconstruction Amendments
i. State immunity
1. 11th amendment
a. Only part of the equation
b. Limit on state accountability in federal courts
2. Sovereigns have immunity feds can abrogate state immunity in
some situations
a. Seminole tribe v florida
b. Price v us
i. Feds not liable to suit unless it consents and liability
cannot be extended beyond plain language of statute
ii. Sanctuary jurisdiction
 1. Justiciability
a. Which party is asserting non-justiciability here?
i. Federal government
1. So they can keep doing what they've been
doing
b. What different legal issues do they raise?
i. Ripeness
1.
ii. Standing
1. Actual injury
c. What does the court rule for each?
i.
2. Constitutional argument
a. Which party is asserting non-justiciability here?
i. SF & santa clara
b. What different legal issues do they raise?
i. Spending power
1. Feds threatening to withdraw funding if they
dont stop being sanctuaries
ii. 10th amendment
1. Like printz
c. Preemption
i. Situations when federal law preempts state or local laws
ii. Express
1. When the Constitution makes the federal power exclusive
a. Ex: Coining Money, Declaring War
2. When Congress has enacted legislation that explicitly prohibits
state regulation in the same area (Lorillard Tobacco Co. v. Reilly)
a. Ex: Federal Cigarette Labeling and Advertising Act
iii. Implied
1. Field Preemption
a. Arizona v. United States
i. Feds have decided the law and said states can't change them
ii. Field
1. Foreign policy issue
a. Need gov to speak with 1 voice
b. Even if complementary
2. Direct Conflict
a. Florida Lime & Avocado Growers, Inc. v. Paul
i. California has a higher standard of avocados than
the federal government
3. Indirect Conflict – Frustration of Purpose
a. PG&E v. State ERCD Commission
i. State law impedes federal law so feds override
iv. Absence
 1. States are free to enact legislation regarding issues that the federal
government is also regulating. AS LONG AS there is no
PREEMPTION.
a. Ex: Identical Racial Discrimination prohibitions, greater
Free Speech Rights
2. In these situations, federal law sets a floor below which state law
generally cannot go, but (*unless there is preemption) it does not
create a ceiling beyond which state law cannot go.
d. Other clauses
i. Dormant commerce clause
1. the prohibition, implicit in the Commerce Clause, against states
passing legislation that discriminates against or excessively
burdens interstate commerce
2. should the judiciary, in the absence of congressional action, should
invalidate state and local laws because they place an undue burden
on interstate commerce?