Advisory opinion, standing, mootness, ripeness, political

Will the Court hear the case? Consider

question doctrine.
prudential standing - no 3rd party
FIRST Can the Court hear the case? Standing - injury in fact [concrete, particularized, actual or
standing, no taxpayer standing [general
imminent]
grievances].
Political Q - Baker factors

Did the legislative body have the subject-matter to pass Can the President exercise this
SECOND the law? power absent approval?
No Recent Act of
Federal Congress State Congress Congress or in
Defiance of
Congress
War Powers?
Commerce Power? All legislate state interests
[but see direct restrictions
below]; Police Power Foreign Policy?
Taxing & Spending Power?

Recognition Power?
Sec. 5 power? [Enforcement
power?]

Does the law go beyond the scope of permissible action in achieving this?
THIRD
Federal government State government

Cannot use commerce power to force someone into a Cannot treat out of staters differently. Dormant Commerce Clause
market; cannot trespass upon traditional state zones of
authority. Test - economic/noneconomic; whether statute
has jurisdictional element; congressional findings that Cannot legislate where federal govt Supremacy Clause
activity has effect on interstate commerce [maybe doesn't exercises Supremacy.
matter much post Morrison]; link between activity &
interstate commerce [no inference on inference]
Commerce Clause
Cannot overly burden states with threat of conditional funds
- pressure v. coercion - does Congress act ?so coercive as
to pass point at which pressure turns into compulsion". Spending Power - No coercion
Must be in pursuit of general welfare [great deference to
Congress]; condition must be clearly stated &
unambiguous; must be related to federal interest; cannot
be so coercive states don't have reasonable choice - Taxing Power - Cannot be a penalty
cannot put a gun to the head of states.

Cannot regulate individual behavior with a penalty. Look at Limits on Congress Enforcement Power -
function of tax [Sebelius] Look at 1) amount of tax - cannot create injuries, Supreme Court's
exceedingly heavy burden; 2) scienter requirement [label duty/job
offender as criminal?] 3) who collects it [IRS?]

Cannot use §5 to expand rights or create new rights; Cannot abrogate state sovereign
cannot regulate purely private conduct.
immunity.
Can use §5 to remedy a constitutional violation, but must
be congruence & proportionality to injury prevented &
means adopted - must identify actual injury via legislative
history. 10th Amendment Anti-Commandeering

Cannot abrogate state sovereign immunity unless it is

under §5, state violates 14th amendment, & remedy is
congruent & proportional to the injury.

Cannot force states to pass legislation or assume

obligations ? Congress may not simply ?commandeer
legislative processes of the states by directly compelling
them to enact and enforce a federal regulatory program.?

Cannot commandeer - can't compel state/local officials to

perform federally-administrated tasks, execute federal law,
or force them into service.