Con Law Flashcards
Article III, Section 2 limits the jurisdiction of the federal courts to two types:
• Law-based Jurisdiction:
o Cases arising under the Constitution or federal law;
o Cases of admiralty and maritime jurisdiction
• Party-based Jurisdiction:
o Controversies to which the US shall be a party;
o Controversies between two or more states;
o Cases between a state and citizens of another state;
o Cases between citizens of different states and the amount in controversy is over $75,000 (diversity cases); and
o Cases affecting ambassadors and consuls
The Eleventh Amendment provides state sovereign immunity:
• Private individuals cannot sue states for money damages in any court (key word is money damages)
o Exceptions:
Federal suits brought by one state against another state;
Suits brought by the federal government against a state;
Subdivisions of a state (e.g., cities, towns, and counties) do not have immunity;
A private citizen may sue a state requesting an injunction;
EXAMPLE: A suit to enjoin a state official from acting in violation of the plaintiff’s federal constitutional rights.
A state may consent to suit in federal court if it clearly waives its 11th Amendment immunity. The state must do so expressly and unequivocally; or
Congress can authorize individual citizen private suits involving monetary damages to compensate for state violations of post-Civil War 13th, 14th, and 15th amendments pursuant to its enforcement powers.
EXAM TIP: When an 11th A. question comes up, be sure to carefully read the choices for money damages versus other types of remedies. If money damages and private individuals are involved, the lawsuit will not be permitted unless it involves the 13th, 14th or 15th Amendments.
EXAMPLE: Suppose that Congress enacts a law that says that citizens can sue a state for money damages for torts committed by state officials. Congress has no power to enact this law for three reasons:
•
This cause of action is not created pursuant to Enforcement Powers of the 13th, 14th, or 15th A.
•
A Tort is not an issue of constitutional violation by a state.
• This cause of action is blocked by state sovereign immunity and the 11th A.
EXAMPLE: Suppose Congress enacts a law that says private parties can sue states for money damages for racial discrimination. This Congressional action is permitted for two reasons:
- The enforcement powers permit Congress to create a private party action for monetary damages when it involves state behavior regulated by the three post-civil war amendments.
- Racial discrimination is forbidden by the 14th Amendment and Congress has the power to enforce this Amendment.
- It is an exception to the 11th Amendment state sovereignty.
3) Even if one of the above types of jurisdiction exists, a federal court must review other requirements before it can hear a case. These requirements come from Article III, Section 2, which limits the jurisdiction of federal courts to “cases” and “controversies.” We call these the justiciability questions.
Case or Controversy:
EXAM TIP: Use the mnemonic RAMPS (to get into federal court, one must go up the RAMPS).
RAMPS:
Ripeness
Abstention
Mootness
Political questions
Special Case Rule for U.S. Supreme Court
Standing:
o Standing: Article III requires a person to show:
Injury in Fact to the person bringing the law suit;
- Plaintiff must show a direct and personal injury, actual or imminent, caused by the action that he is challenging. Where the plaintiff has not suffered any personal injury or harm, he does not have standing.
- Examples of individuals who lack standing:
o Legislator who doesn’t like legislation passed.
o Private individual who merely believes law is unconstitutional.
o Tax-payer who does not want tax dollars used to enforce a law he believes is unconstitutional.
Exception: A taxpayer can challenge a law believed to violate the Establishment Clause of the 1st Amendment.
Causation: Injury was caused by the challenged action; and
Redressability: Plaintiff must show that he will benefit from the remedy sought in the litigation and that the court can provide that remedy.
Exceptions to the Standing Rules: Third Parties
• Third-Parties: A litigant lacks standing to assert the rights of third parties not before the court, except under the following conditions:
Special Relationship Exception: The Supreme Court has permitted a plaintiff, who is not the party injured, to raise the constitutional rights of a third party, who is in fact injured, if the following two conditions are satisfied:
- A special relationship exists between the plaintiff and third party because of the connection between the interests of the plaintiff and the constitutional rights of the third person; and
- The third party is unable or finds it difficult to bring suit on his own behalf.
EXAMPLE: The Supreme Court has upheld the right of doctors to sue on behalf of patients who might be seeking abortions. There is a special relationship between the interests of the patient and the doctor. They are aligned. There is also incapacity. A woman seeking an abortion might not want to bring the suit because of privacy. The incapacity does not need to be absolute.
Exceptions to the Standing Rules: Organization/Member Exception:
Organization/Member Exception: An organization has standing to assert the claims of its members, even if the association has not suffered any injury itself, if:
- The members would have standing to sue in their own right;
- The interest asserted is germane to the association’s purpose; and
- Neither the claim asserted nor the relief requested would require the individual members to participate in the lawsuit.
EXAMPLE: If the government destroys Joe’s house to build a highway, the Neighborhood Association cannot bring a suit on his behalf for money damages because Joe would need to collect those money damages, i.e., the relief requested. Therefore, an individual member is required to participate.
EXAMPLE: However, if the house has not yet been destroyed, the Neighborhood Association can bring a suit requesting an injunction because Joe would not be required to participate in the suit, and the neighborhood has an interest in protecting all the houses in the neighborhood.
HYPOTHETICAL: The members of the National Political Book Club (NPBC) purchase books of their choosing relating to controversial political issues at a discount price from NPBC. The Department of Homeland Security has demanded that the NPBC turn over its sales records, including which books have been purchased by each member. NPBC sues to prevent the release of information, claiming free association of its members. Will the club have standing?
Exceptions to the Standing Rules: Ripeness:
Bars consideration of claims before the claim’s issue has fully developed. The controversy must be ripe for decision because otherwise the federal courts will decide constitutional issues before it is necessary to do so.
Exceptions to the Standing Rules: Mootness:
If a controversy or matter has been resolved, then the case will be dismissed as moot. There is no longer a controversy for the court to resolve.
Exception (use the mnemonic CRYER):
The case will not be dismissed for mootness if the injury is “Capable of Repetition, Yet Evading Review.” Meaning that it is a practical impossibility for the case to be fully heard or go up on appellate review before the plaintiff’s claims, or the claims of other individuals who are members of a class action become moot.
EXAMPLE: Where there is a restriction on a pregnant woman’s right to seek an abortion but there is no way the case can be decided while she is still pregnant. This is capable of repetition but the court will never hear it so it evades review. So we make an exception.
EXAM TIP: If the correct answer is “ripeness” or “mootness,” then the question will most likely deal with a lawsuit remedy requesting declaratory judgment.
Exceptions to the Standing Rules: Political Questions:
o Political Questions: Federal courts cannot hear cases involving political questions. A political question is a matter that the Constitution assigned to another branch of government or that is incapable of a judicial answer. The Supreme Court set forth factors to determine if the political question doctrine applies.
Two most important factors:
• Something in the Constitution suggests that ultimate decision-making authority is given to another governmental actor; and
EXAMPLE: The Constitution says the Senate shall have the sole power to try impeachments. This is not a matter for the courts.
• The required decision is political rather than legal in character.
EXAMPLE: The court states it will not review the way a state draws its electoral districts where the plaintiff argues they were drawn in a manner to favor one political party over another. The Supreme Court has determined that the issue is not legal but rather a political question.
EXAMPLE: If the plaintiff argues that the electoral districts were drawn in a manner to favor a particular race, the court can hear the case because the basis of the issue is legal, not political.
EXAM TIP: Foreign affairs is a frequently tested political question topic.
Exceptions to the Standing Rules: Abstention:
o Abstention: A federal court may abstain or refuse to hear a particular case when the case includes undecided issues of state law. The abstention doctrine permits a federal court to defer to a state court to resolve issues of state law. If resolved via state law, the constitutional issues disappear. Thus, proper deference is paid to the state court system and harmonious federal-state relations are furthered. Abstention occurs in two ways:
The federal court may abstain if the meaning of a state law or regulation is unclear. In this situation, the state court might interpret the statute so as to avoid the constitutional issue.
Where a state court proceeding is going on, the federal court will abstain from hearing the same matter.
Exceptions to the Standing Rules: Special Case Rule for the U.S. Supreme Court:
Adequate and Independent State Grounds: Although a state court decision may involve a federal question, if the state court judgment can be supported on an adequate and independent state ground, the Supreme Court will not take jurisdiction. To do so would be tantamount to rendering an “advisory opinion.”
Applies only to the Supreme Court.
EXAMPLE: A party to a contract breaches one provision of the contract. The matter goes up through the state system, and the state court rules that the entire contract is nullified because the breached provision was not severable as a matter of state law and because it is in violation of the federal antitrust laws. The court has ruled on one state law ground and one federal law ground. The Supreme Court cannot hear this case because the state law ground is adequate to support the decision.
EXAM TIP: A state law ground will usually be adequate if it invalidates something—a state law or a contract. On the other hand, a state law will usually not be adequate if the law or contract is upheld under both state and federal law.
Exception: If the state court says, in interpreting the state constitution, it was merely copying the federal constitution, then no clear, independent state ground exists; so the doctrine will not apply and the Supreme Court will hear the case
Jurisdiction of the Supreme Court
- Original jurisdiction over cases involving ambassadors, foreign diplomats, and states.
- Congress cannot enlarge or restrict the Supreme Court’s original jurisdiction.
- Appellate jurisdiction exists where the Constitution or a federal law is at issue.
Congress’s power over the courts
- Lower courts: Constitution grants Congress power to create courts inferior to the Supreme Court and prescribe their powers (i.e., change jurisdiction, eliminate, or create courts).
- Supreme Court: unsettled how much power Congress has over the Supreme Court.
- Congress cannot take a case from appellate jurisdiction and move it to original jurisdiction (Marbury v. Madison).
Powers of Congress: Legislative Power
• Legislative Power
o For a federal law to be constitutional:
Congress has the powers the Constitution gives it and no others.
Congress must have the power to pass the law, and the law must not violate a constitutional right.
EXAMPLE: Let’s the use the visual of a pyramid of beer cups. The first question is whether Congress has the right to even build that pyramid. The second question is, even if Congress has the right to build the pyramid, i.e. create the law, does the law violate the Constitution? If so, the pyramid of beer cups gets smashed down, i.e. the law is struck down as unconstitutional.
o For a state law to be constitutional: the law must not violate a constitutional right.
EXAM TIP: Watch out for an answer that says Congress had the power to enact the law under its federal police power or Congress’ power to promote the general welfare. These powers do not exist unless discussing the District of Columbia or some other federal territory.
o Procedurally, Congress passes a bill with a majority in both houses. The President then signs the bill or vetoes it. If the bill is vetoed, Congress can override the veto if it gets a vote of two-thirds majority in each house.
o Congress gets its power to legislate from three sources or legal theories using the mnemonic “PEN” and Congress writes the laws:
Enumerated powers = To collect taxes and spend money for the general welfare, to borrow money on the credit of the United States, regulate commerce, declare war, and to raise and support the army, navy, and militia. (It’s all about power and money = P)
Enabling clauses of the 13th, 14th, and 15th Amendments give Congress the power to enforce those amendments by “appropriate legislation.” (Enabling = E)
Necessary and Proper Clause = gives Congress the implied power “to make all laws which shall be necessary and proper” to carry out an enumerated power. (What is necessary to get stuff done = N)
EXAMPLE: Congress passes a law creating a national bank. The Constitution does not expressly give Congress this right. However, the Supreme Court reasons that a national bank will help Congress pay debts, collect taxes, spend money, and regulate commerce. Thus, the clause is justified in conjunction with other enumerated powers.
EXAM TIP: The Necessary and Proper Clause as an answer by itself will usually be incorrect. If it’s the Necessary and Proper Clause in conjunction with another power, it is more likely to be a right answer.
Powers of Congress: Commerce Power
o Congress can regulate:
Channels of interstate commerce (i.e., highways, waterways, and air traffic);
Instrumentalities of interstate commerce (i.e., cars, trucks, ships, airplanes); and
EXAMPLE: Congress can enact a law prohibiting interstate shipment of goods made with child labor. Congress is trying to discourage child labor, an interstate activity. It does not matter that the purpose is not commerce related.
Activities that “substantially affect” interstate commerce.
• Substantial Effect: Congress has the power to regulate any economic activity, whether carried on in one state or many, which has a substantial effect upon interstate commerce.
EXAMPLE: Congress can use the commerce power to protect the right of workers to form unions. Although this seems purely intrastate, the flow of goods and people across state lines is affected by labor disputes.
• Cumulative Effect Doctrine: Congress can regulate activities that have a tiny effect on interstate commerce independently, when all such activities are put together, a substantial cumulative effect upon interstate commerce will result.
EXAMPLE: The federal commerce power permits regulation of the amount of wheat an individual farmer can grow on his own land, for his own consumption, because his activity, together with that of all the other growers of wheat for their own consumption, have a substantial cumulative effect upon interstate commerce.
• Limitations:
Cannot use the power to regulate intrastate non-economic activity.
EXAMPLE: Possession of a handgun is not an economic activity.
EXAMPLE: Violent crime is not an economic activity.
EXAMPLE: Loansharking is considered an economic activity.
EXAMPLE: Congress’s plenary commerce power is not without limits. In U.S. v. Lopez [514 U.S. 549 (1995)], for the first time in more than half a century, the Supreme Court struck down a federal law that made it a crime for any individual knowingly to possess a firearm in a school zone. Since gun possession near schools is neither itself an “economic” activity nor an activity that “substantially” affects interstate commerce, and since no “jurisdictional element” connecting particular gun possession to interstate commerce was expressed in the language of the statute, the Supreme Court held that Congress was acting beyond the limits of the Commerce Clause.
Exception: regulating intrastate non-economic activity with a “comprehensive scheme.”
The commerce power cannot overcome state sovereign immunity—i.e. the Commerce Clause does not trump the 11th A. For example, Congress cannot use the commerce power to create a private cause of action for money damages against a state. However, it can bar racial discrimination by private parties in activities connected with interstate commerce, (Atlanta Hotel case) but it cannot use the Commerce Clause as the basis for barring racial discrimination by a state and allow private parties to sue to enforce that law by seeking money damages. But recall, Congress can use the post-Civil War enabling powers of the 13th, 14th, or 15th Amendments to achieve such a law.
Powers of Congress: Taxing Power
o Congress has the power to impose and collect taxes in order to pay debts and spend for the general welfare. A congressional act purporting to be a “tax” should be upheld as a valid exercise of the taxing power if:
It raises revenue (objective test);
It was intended to raise revenue even if it doesn’t (subjective test); or
Congress has the power to regulate the activity that’s being taxed (regulatory test).
EXAMPLE: The Supreme Court sustained a tax on coal producers who violated a fair competition law, even though it was clearly designed to be a penalty rather than raise revenue [Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940)].
Powers of Congress: Spending Power
o Article I, Section 8, Clause 1, provides Congress with the power to spend for the general welfare.
EXAM TIP: Do not say that something is unconstitutional because it is not for the general welfare.
EXAMPLES:
Congress can give money to political candidates and state that, in return, they must abide by certain expenditure limits. The Supreme Court sustained this as spending for the general welfare because it would reduce the harmful effect of candidates’ reliance on large private contributions [Buckley v. Valeo, [424 U.S. 1 (1976)].
Congress can spend money to build highways. It can even spend money to build a single bridge in a single state. This is because transportation promotes the general welfare.
Congress may not spend money to build a vacation home for the Senate majority leader. It would take this sort of self-dealing and corruption to fall outside of the general welfare.
o Congress can use its spending power to get around limits on its regulatory power. It may pass a law offering money to states or individuals in exchange for “x”. Often, “x” is not something that Congress could order the state or individual to do directly.
EXAMPLE: Congress cannot use its commerce power to regulate public schools. However, it can use its spending power to offer money to the public school systems if they agree to implement standardized testing.
o Congress may place a condition on the receipt of federal funds by a state if:
The spending serves the general welfare;
The condition is unambiguous;
The condition is related to the federal program (relatedness);
The state is not required to undertake unconstitutional action; and
The amount in question is not so much that the state is “coerced” into accepting the funds.
HYPOTHETICAL: In this year’s budget, Congress attaches a stipulation on school breakfast funding to the states requiring the recipient state to offer and pay for universal health care of its citizens. Will the stipulation be upheld in a challenge?
Powers of Congress: War and Defense Powers
o Congress may declare war, raise and support armies, provide and maintain a navy, and organize, arm, discipline, and call forth a militia.
o During wartime, Congress has the power to:
Activate the military draft and selective service;
Initiate wage, price, and rent control of the civilian economy; and
Exclude civilians from certain restricted areas.
o Congress can establish military courts to gain jurisdiction over members of the armed forces, conduct court-martial proceedings, and try enemy combatants.
EXAM TIP: A question might ask what rights a terrorist has with respect to detention. Both U.S. citizens and non-U.S. citizens within the United States (or U.S. territories) are entitled to Due Process rights.
Powers of Congress: Immigration and Naturalization
IT IS WHAT IT SOUNDS LIKE. only congress can do this
Powers of Congress: Investigatory Power
o Congress has broad investigatory powers that may extend to any matter within its legitimate lawmaking functions.
o Congress can do things necessary to facilitate an investigation (i.e., cite a witness who fails to appear for contempt), but it cannot override any person’s constitutional rights.
Powers of Congress: Property Power
o Congress has the power to regulate or dispose of federal property.
EXAM TIP: If dealing with a federal territory and not a state, Congress has a general legislative power and can pass any law it would like.
Powers of Congress: Power of Eminent Domain
o Congress has the power to take private property for public use (implied power, not expressly granted in the Constitution).
Admiralty and Maritime Power
o The Supreme Court has determined that the Necessary and Proper Clause gives Congress complete and plenary power to fix and determine the maritime laws throughout the country.
Bankruptcy Power
o Congress has the power to “establish uniform Laws on the subject of Bankruptcies throughout the United States.”
Postal Power
May establish Post Offices and Post Roads
Copyright and Patent Power
o Congress may “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.
