BAR: CON LAW Flashcards
Standards of Review
Strict Scrutiny
Intermediate Scrutiny
Rational Basis
Strict Scrutiny
Necessary to achieve a compelling government purpose ( Burden on the gov’t)
Intermediate Scrutiny
Substantially related to an important government purpose (Burden on the gov’t)
Rational Basis
Rationally related to some legitimate government purpose (Burden on the petitioner)
Standing
Article 3 requires a plaintiff to have standing before a constitutional challenge can be made.
Standing Elements
(1) INJURY
The plaintiff must allege or prove that she was injured or imminently will be injured
(2) REDRESSABILITY
To be redressable, a court decision in plaintiff’s favor must be capable of eliminating harm
(3) CAUSATION
Was caused by the act being Challenged. There must be a causal connection between the injury and the state action
Organizational Standing
An organization has standing when…
(1) there is injury to a member which gives them a right to sue on their own behalf (i.e. member must have actually violated the statute)
(2) the injury is related to the organization’s purpose,
and
(3) participation of individual members of the organization is not required.
Third Party Standing
A claimant may have standing to assert the rights of a third party if..
(1) it is difficult for the third party to assert his own rights, or
(2) a special relationship exists between the claimant and the third party.
Taxpayer standing or citizen standing
A person does not have standing merely as a taxpayer or as a citizen of the United States because their interest is too remote.
Taxpayer standing exceptions
Taxpayers have standing if…
(1) the constitutional challenges relates to a tax bill they paid under protest, or
(2) The constitutional challenge is based on the Establishment Clause of the First Amendment where the government exercised its Spending Power.
Standing to Enforce Governmental Statutes
A plaintiff may have standing to enforce a governmental statute if she is within the zone of interests the statute’s purpose is to protect.
State Action
The Constitution does not provide a means of redress for private wrongs. State action must be present in order for an individual to vindicate her constitutional rights. State action can be found in actions of private individuals who:
(1) perform exclusive public functions, or
(2) have significant state involvement.
Justiciability
Federal courts may address cases and controversies so long as there is standing, state action, and other limitations are not present (ripeness, advisory opinion, abstention, mootness, political question)
Ripeness
A case is not yet ripe if there is no immediate threat of harm
π is entitled to pre-enforcement review of a statute or regulation if:
(1) P will suffer some harm or immediate threat of harm, and
(2) there are sufficient issues/records for judicial review which is determined by looking at whether a case was even filed.
Advisory Opinions
A federal court may not render an advisory opinion. The parties must show:
(1) They have engaged in or wish to engage in specific conduct, and
(2) That the challenged action poses a real and immediate danger to their interests.
Abstention
A federal court will abstain from hearing a constitutional claim if based on an unsettled question of state law.
Mootness
A case is moot if there is no longer any immediate threat of harm, unless the controversey:
(1) is capable of repetition yet evades review
(2) involves a class action in which at least one member still has a viable claim, or
(3) involves a defendant who voluntarily ceases harm but is free to resume at any time.
Political Question
Political questions are not justicable if they are either:
(1) Textually demonstrably constitutionally committed to another branch of government, or
(2) inherently incapable of judicial resolution
Tenth Amendment
All powers not granted to the federal government, nor prohibited by the states, are reserved to the states or the people.
Eleventh Amendment
Eleventh Amendment provides sovereign immunity to the states so a federal court may not hear a private party’s claims against a state government unless
(1) the state expressly consents and waives immunity
(2) The action is against a state officer but does not involve payment of damages out of state funds, or
**federal courts may not hear claims for damages against a state but they may hear a claim where the remedy being sought is an injunction **
(3) Congress removes immunity to prevent discrimination under the 14th Amendment
Legislative Powers
Congress can exercise those powers enumerated in Article I, Section 8 of the Constitution, and all auxiliary powers NECESSARY AND PROPER to carry out all powers vested int he federal government, including:
Spending Power
Taxing power
War Power
Property Power
Investigatory Power
Citizenship Power
Bankruptcy Power
Postal Power
Admiralty power
Power to Coin/Money
Patent and Copyright power
Commerce Clause
Congressional Enforcement of Civil Rights
Legislative Powers: Spending Power
Congress may spend for any public purpose for the common defense and general welfare of the public
Legislative Powers: Taxing Power
Congress may tax so long as it bears some reasonable relationship to raising revenue and Congress can regulate the activity taxed.
Legislative Powers: War Power
Congress has the exclusive power to declare war and appropriate money to raise the military
Legislative Powers: Property Power
Congress has power over the properties of the U.S. (including Washington D.C.), which includes the right to tax real property. Congress can also take property for public use called eminent domain. Congress can protect federal lands, which includes the right to protect wildlife on that land.
Legislative Powers: Investigatory Power
Congress can investigate anything it has power to legislate over
Legislative Powers: Citizenship Power
Congress can establish uniform rules of naturalization
Legislative Powers: Bankruptcy Power
Congress has the power to establish uniform rules for bankruptcy.
Legislative Powers: Postal Power
Congress has the power to validly classify and place reasonable restrictions on the use of the mail system.
Legislative Powers: Admiralty Power
Congress’ admiralty power is plenary (full and comprehensive) and exclusive
Legislative Powers: Power to Coin/Money
Congress has the power to coin money and fix the standards for weights and measures
Legislative Powers: Patent and Copyright Power
Congress has the power to control the issuance of patents and copyrights
Legislative Powers: Commerce Clause
Congress has the exclusive power to regulate all foreign and interstate commerce, including channels, instrumentalities, and activities that affect interstate commerce.
If Congress attempts to regulate intrastate activity, the law will only be upheld if:
(1) it is an economic or commercial activity that, in the aggregate,
(2) substantially affects interstate commerce.
Legislative Powers: Congressional Enforcement of Civil Rights
Congress has special powers to pass “appropriate legislation” to enforce post-Civil War amendments (i.e. 13th, 14th, 15th Amendments).
Limits on Congress’ Authority to Act
No Federal Police Power
10th Amendment - Commandeering the States
Delegation Power
Speech and Debate Clause
Legislative vetoes of executive actions
Limits on Congressional Authority: Federal Police Power
Congress does not have a general police power except in Military bases, Indian reservations, federal Lands, and the District of columbia (MILD)
Limits on Congressional Authority: 10th Amendment
Commandeering the States
Congress cannot commandeer the states by compelling state regulatory or legislative action. Even if there is a federal statute on point, states are not required to pass identical legislation to that federal law to be constitutional.
Limits on Congressional Authority: Delegation Power
Congress may delegate authority to the executive or judicial branch so long as it provides intelligible standards
Limits on Congressional Authority: Speech and Debate Clause
Speech and conduct occurring in the regular course of the legislative process are immune from prosecution
Limits on Congressional Authority: Legislative Vetoes of Executive Actions
A legislative veto is an attempt by Congress to overturn an executive agency action without passage by both houses of Congress or without giving the bill to the President for his signature or veto is invalid.
Executive Powers: Appointment Power
The president has the power to appoint all ambassadors, USSC justices and consults with Senate approval. Congress may vest appointments of “inferior” officers with the President. Congress may not give itself or its officers the appointment powers.
Executive Powers - DOMESTIC
DOMESTIC
Appointment Power
Removal Power
Pardon Power
Veto Power
Executive Order Power
Take Care Clause
Executive Powers: Removal Power
Unless removal is limited by statute, the President may remove any executive branch officer without cause.
Congress may not prohibit it but may limit removal if:
(1) Independence from the President is desirable for that particular office, and
(2) the removal is based on good cause.
Executive Powers: Pardon Power
The president has the right to grant pardons for those convicted of federal crimes or state offenses but not for impeachment or civil contempt.
Executive Powers: Veto Powers
The president can veto acts of Congress but the veto can be overridden by a 2/3 vote of each house. If the President does not veto OR sign the bill within 10 days of receiving it, it becomes law.
Pocket Veto
A veto that becomes effective when the president fails to sign a bill after congress had adjourned during the 10 day period (this is an absolute veto and cannot be overridden)
Line Item Veto
The president cannot veto parts of a law and approve other parts of the law.
Executive Powers: Executive Order Power
The president may make proclamations and executive orders that all courts of the US must recognize. The president’s power to enact executive orders depends on whether Congress granted authority, is silent, or has denied authority
If congress express or impliedly granted authority, the presidential powers are at a maximum and her actions are likely valid.
If congress is silent, the President’s action will be valid unless it usurps power from another branch.
If Congress denied authority, the President’s actions are likely invalid.
Executive Powers: Take Care Clause
The president “shall take care that the laws be faithfully executed.” The President has no power to refuse to spend appropriated funds when Congress expressly mandates they be spent.
Executive Powers - FOREIGN
The president is the Commander in Chief and has the paramount power to represent the US in day to day foreign relations.
FOREIGN EXECUTIVE POWERS
Treaty Power
Executive Agreements
War Power
Executive Powers: Treaty Power
The president has the power to enter into treaties with other countries. The treaty becomes effective when it is ratified by 2/3 consent of the Senate.
TREATY CONFLICT OF LAWS
If a treaty conflicts with state law, the state law is invalid
If treaty conflicts with federal law, the last enacted controls.
If treaty conflicts with Constitution, the treaty is invalid.
Executive Powers: Executive Agreements
The President may make agreements with foreign heads of state without Senate consent.
EXECUTIVE AGREEMENT CONFLICT OF LAWS
If the executive agreement conflicts with state law, the state law is invalid.
If executive agreement conflicts with federal law, the executive agreement is invalid.