QUESTION: With regard to standing, if a individual is requesting declaratory relief that a law is unconstitutional, does this require the showing of a future imminent harm as required when requesting injunctive relief, or would standing be satisfied by a previous injury in fact?
ANSWER: Future harm. A declaration that the law is unconstitutional would not redress the past injury.
QUESTION: In applying substantive Due Process to the states this is done through the 14th amendment, if a federal law is restricting what could be viewed as a fundamental right can substance Due Process be applied to the federal government through the 5th amendment?
ANSWER: Yes.
QUESTION: I know we went over the Anti-Commandeering principal and the federal government making the states perform some affirmative act or prohibiting some act, but wanted to try to clarify something, is the federal government prohibiting a state from doing something not going to create an anti-commandeering issue?
ANSWER: If it is a mere prohibition, I do not think it can be a commandeering. For if it were, then ordinary preemption would be unconstitutional. (Every federal law that preempts a state law effectively prohibits a state from regulating in a particular way.)
QUESTION:Going back to the 2009 Test, H1N1 - With respect to the spending power - if CA elected to not administer the program and the Federal government ended up doing, my understanding is that the Act still would have been characterized as spending power legislation. CA simply turned it down. My question is whether Congress the Act would still have been classified as "spending legislation" if Congress had elected for the Federal Gov't to administer the vaccine. Intuitively and looking at the Spending Clause - this seems like an easy question since Congress is paying for the program. However, when we discussed spending in class it seemed like the context only related to Congress' taxing and how used to incentive states. Am I correct in thinking that Federal Government programs administered by the Federal Government applies to the Spending Clause?
QUESTION: I just want to confirm what I believe you said regarding standing of states to sue the Federal Government. My understanding from the discussion today is that a state can sue (has standing) the Federal Government for passing a law that the state believes is unconstitutional.
QUESTION: I know we went over the Anti-Commandeering principal and the federal government making the states perform some affirmative act or prohibiting some act, but wanted to try to clarify something, is the federal government prohibiting a state from doing something not going to create an anti-commandeering issue?
ANSWER: If it is a mere prohibition, I do not think it can be a commandeering. For if it were, then ordinary preemption would be unconstitutional. (Every federal law that preempts a state law effectively prohibits a state from regulating in a particular way.)
QUESTION:Going back to the 2009 Test, H1N1 - With respect to the spending power - if CA elected to not administer the program and the Federal government ended up doing, my understanding is that the Act still would have been characterized as spending power legislation. CA simply turned it down. My question is whether Congress the Act would still have been classified as "spending legislation" if Congress had elected for the Federal Gov't to administer the vaccine. Intuitively and looking at the Spending Clause - this seems like an easy question since Congress is paying for the program. However, when we discussed spending in class it seemed like the context only related to Congress' taxing and how used to incentive states. Am I correct in thinking that Federal Government programs administered by the Federal Government applies to the Spending Clause?
ANSWER: If I am understanding you correctly, the answer is yes. Often Congress uses the Spending Clause to encourage states to take certain actions by offering them money and attaching conditions. But the vast bulk of Spending Clause legislation does not involve the states. Think of defense spending. Or Social Security. Or Medicare. The federal government's provision of a benefit like a vaccine would constitute spending legislation as well, even when the states are not involved.
QUESTION: I just want to confirm what I believe you said regarding standing of states to sue the Federal Government. My understanding from the discussion today is that a state can sue (has standing) the Federal Government for passing a law that the state believes is unconstitutional.
ANSWER: That is true if the claim is that the law violates a right held by the state, such as its sovereign right not to be commandeered. But I do not think it is correct more generally. (A state would lack standing to vindicate the First Amendment rights of its citizens, for instance.)
QUESTION: The basis for the state's standing is that the law would be forcing the state to violate the Constitution in enforcing the law?
QUESTION: The basis for the state's standing is that the law would be forcing the state to violate the Constitution in enforcing the law?
ANSWER: I would state it differently. The injury for standing purposes would be that the law forces the state to do something it does not want to do. The legal claim would be either (a) that the law amounts to a commandeering, or perhaps (b) the law is unconstitutional for some other reason, such as the fact that it requires the state to engage in unconstitutional behavior. But the claim need not be (b) to give the state standing to sue.
QUESTION: I wonder what we are supposed to discuss if the federal government (instead of state government) invades individual's fundamental rights or Privilege and immunities (rights to travel, same sex-marriage), such as the federal law of Defense of marriage Act in the Fall 2005 exam. Substantive due process should not apply since it is not state action. There are of course Bill or Rights. Are we supposed to discuss this?
ANSWER: You have raised two different questions. First, the the Fourteenth Amendment only applies to the states (as the text states "No State . . . ."). But the Fifth Amendment, which obviously applies to the federal government, also contains a Due Process Clause.
QUESTION: I am looking at your 2009 model answer right now and I'm kind of confused why preemption is not mentioned in the answer since there is a state law and a federal law that conflict and in this case the federal law is basically preempting the state law by canceling all sales contracts between the states and the vaccine manufacturers and by prohibiting states from purchasing an additional doses of the vaccine. Is the reason its not mentioned b/c you stated in the beginning of the exam not to talk about sovereign immunity? I guess I'm kind of confused as to what part of the class "sovereign immunity" is referring to because it seems pretty general.
ANSWER: Preemption is only relevant if one party is invoking state law, and that state law may be displaced due to a conflicting federal law. True enough, that may be true in the abstract in last year's exam. But what were the actual claims raised by the parties? Was anyone invoking state law in any way, such that the validity of that state law would be in issue? As to state sovereignty, we did not cover it (except for those brave souls who attended the optional Eleventh Amendment class). Often I include these disclaimers out of an abundance of caution -- particularly for students who have spent much of their time studying materials other than those that I have assigned.
QUESTION: I wonder what we are supposed to discuss if the federal government (instead of state government) invades individual's fundamental rights or Privilege and immunities (rights to travel, same sex-marriage), such as the federal law of Defense of marriage Act in the Fall 2005 exam. Substantive due process should not apply since it is not state action. There are of course Bill or Rights. Are we supposed to discuss this?
ANSWER: You have raised two different questions. First, the the Fourteenth Amendment only applies to the states (as the text states "No State . . . ."). But the Fifth Amendment, which obviously applies to the federal government, also contains a Due Process Clause.
QUESTION: I am looking at your 2009 model answer right now and I'm kind of confused why preemption is not mentioned in the answer since there is a state law and a federal law that conflict and in this case the federal law is basically preempting the state law by canceling all sales contracts between the states and the vaccine manufacturers and by prohibiting states from purchasing an additional doses of the vaccine. Is the reason its not mentioned b/c you stated in the beginning of the exam not to talk about sovereign immunity? I guess I'm kind of confused as to what part of the class "sovereign immunity" is referring to because it seems pretty general.
ANSWER: Preemption is only relevant if one party is invoking state law, and that state law may be displaced due to a conflicting federal law. True enough, that may be true in the abstract in last year's exam. But what were the actual claims raised by the parties? Was anyone invoking state law in any way, such that the validity of that state law would be in issue? As to state sovereignty, we did not cover it (except for those brave souls who attended the optional Eleventh Amendment class). Often I include these disclaimers out of an abundance of caution -- particularly for students who have spent much of their time studying materials other than those that I have assigned.