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Legislative/Item Veto Privileges and Immunities Delegation of Power

Law making = “Action with the purpose and -Includes Right to Travel Freely -Cong. can only delegate power it has to give:
effect of altering the legal rights, duties and -Right to leave one state and enter another -Law making power as long as with:
relations of persons outside the legislative -Right to be welcomed in other states -“an intelligible principle by which the person or
branch.” -Right to move to other states, become body is authorized to act is directed to conform”
-Must have (2): permanent resident and enjoy same -Court has been generous for practical reasons
-Bicameral Passage privileges and immunities as residents -Dissent: text argument, congress all legis. autho.
-Presentment -can impose reasonable requirements for -Judicial Power – Never
-Dissent: portable benefits -Executive Power – Cannot retain control (removal
-not the creation of new law, just limitation, -14th amend is the one at issue here; deals w/ authority other than impeachment) over officials w/
shaping of properly passed law discrimination against classes, not states executive authority.
-Art4: Camden -can’t be prevented from
fundamental right (making a living) based
on state citizenship
Interpretation Dormant Commerce Clause Contract Clause
Originalism – prime source of deciding how a Is state a market participant?
section of the const. applies to a particular -Buying, selling, dispensing of goods STATES ONLY
issue is how the framers thought about the -Subsidies can = market p.
pertinent section -Watch for downstream, non-market seep Can’t interfere w/ existing contracts; Balancing Test:
Rational Basis? – (If no – OUT) -How substantial is change of the term?
Non-Originalism – context is out of whack Discriminatory – -What is the scale of the problem being addressed?
-If facially/practically disc. (strict scrutiny) -Is modification reasonable (foreseeable) & necessary?
Interpretivism – cautious about inferring -Important state interest? (no – OUT) (Allied Steel v. Spannaus)
additional items into the text of the -If so, Least discrimin? (no – OUT)
constitution -If yes – OK Higher Scrutiny: (U.S Trust v. NJ)
-worries about court loosing credibility -If not disc but burdens ISC, balance. -Government interference w/ own K’s
-If more burden – OUT -Statute aimed at particular company
Non-Interpretivism – less focused on text, -If more benefit - OK -Aimed at a particular class (slightly less than above)
more focused on structure, themes of
constitution, precedent, etc
-worries about court being unrealistic, out of
touch
Federalism Limitations Justiciability Substantive Due Process
Congress May: Political Question: States AND Fed
-Directly regulate activities of the state -Decision assigned to other branch -What type of right?
-Preempt w/ own on-point legislation -Lack of judicial tools to make decision -Is it violated?
-Entice state to pass law w/ conditional $ (2) -Can’t decide without making policy decision -Does it pass the appropriate standard?
-$ must be related to interest in question Advisory Opinions: Strict:
-not ripe, no case or controversy Fundamental Rights:
Electoral process concerns Ripeness: -Raise children how you want (Society of Sisters)
-Claimant must have been harmed/will be soon -Intimate relationships (Laurence)
-Criteria for deciding before actual effect: -Live with your family (E. Cleveland v. Moore)
-PL’s hardship w/o pre-enforcement review -Privacy (Roe)
-Does ct. have all info/tools to decide yet? -Marry (Zabloki)
Mootness: Raised:
-Claim no longer valid: change in law/facts Liberties:
-Exceptions: -Abortion (Casey)
- capable of repetition but evading review Rational Basis:
- Voluntary renunciation, free to reinstate, -Other stuff
not necessarily moot No Economic substantive due process – only
conceivable rational basis (Nebbia, Lee Optical)
Procedural Due Process Commerce Clause Standing
Taking of individual government benefit -Internal Limitations: Elements (3):
(property or liberty) (2) -Lopez (3): Channels, Instrumentalities, -Injury – has been or will be immediately injured by
-Must be a property interest? Those thing substantially impacting -Causation – injury must be result of gov act in quest.
-Must have expectation of continuation -Redressability – Ct. must be able to relieve harm w/
ISC
-Can be express or Implied judgment
-Must have sufficient process to determine if
-Cumulative effect of Third Party (4) –NAME THE RIGHT
person deserves to have property denied(3): economic activity on ISC -Injured party unlikely to assert right econ/soc. disinc.
-How important is prop/liberty interest? -External Limitations: -Litigant must be essential party for enjoyment of right
-What risk of error w/o proposed procedure -Regulate interstate commerce to -Litig. must show injury by deprivation of 3rd p.’s right
-What is burden on gov. if procedure added achieve a legitimate goal -3rd p. must have an injury re: the right in question
**Stigma + Harm Association Standing (3):
Dissent: -Limitations: consider if area traditional -Members othcerwise have standing
-Procedure and benefit are part of same handled by the state -Interest protected is germane to association’s purpose
package; gov decides procedure w/o review -Claim/remedy doesn’t req. individual members’ partcp.
Preemption Executive Privilege Executive Authority
-Express – fed. statute says it’s exclusive in field Executive Privilege: presumed of secrecy Grant From Congress:
(rare) w/ balancing -Youngstown Majority: Expressly avoided giving
-Implied – If privilege invoked, in camera viewing -Frankfurter: A&B expressly okay, C off limits than
-Conflict Preemption: Mutually exclusive law balancing: D and E may be okay.
OR state law interferes w/ fed objective -Interest in Confidentiality -Jackson: Three zones
Field Preemption -National Security (+);
-General Privacy (-) Hiring and Firing –
-Need for Info -President has sole firing power over principle officers
-Criminal(+); Civil(-); Only Source(+); -Congress may limit presidential firing power on exec.
PL(-); DF(+) officers to the extent that the president doesn’t need
to be able to fire them on the spot to carry our exec.
-Congress may vest firing power in a primary officer
(limited by the same as above)
-Congress can NEVER hold onto firing power of exec
officials.

THEMES

-Countermajoritarian Concerns
-Deference to States vs. High Scrutiny
-Making Categories/Drawing lines
-Practicality
-Separation of Powers
-Morals
-Traditions
-Interpretivism and Originalism
-Discrimination

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