Con. Law Flashcards
Question
Answer
What is the name of limits on powers?
Justibility Doctrines
What are the four justicibility doctrines?
(1) Standing (2) Ripeness (3) Mootness (4) Political Question
What is standing?
If the plaintiff can bring a suit.
What are the elements of primary party standing?
(1) Injury in fact (usually money), (2) causation, and (3) redressability.
What is required for a plaintiff to have standing in a constitutional matter?
(1) Personal
injury, (2) Causation & redressability, (3) No generalized grievances, or (4) third-party standing.
What are the injuries valid for standing and redressabilty in Constitutional claim?
Personal injuries (health or property) and likelihood of injury again.
What is the best candidate for an injury?
One has suffered a monetary loss.
When can a third-party have standing?
(1) Close relationship, (2) unlikely to assert their own rights, (3) organizations.
When can an organization have third-party standing?
(1) Members have standing on their own, (2) Interest germane to the purpose of the organization, (3) No need for individual participation.
What is generalized grievance?
A plaintiff may not sue solely as (1) a citizen or (2) a tax payer.
What is the only exception to having a tax payer having to sue?
When the tax provides a direct violation of the establishment clause of the 1st amendment.
When may a plaintiff have a ripe claim despite not suffering harm?
(1) Hardship in compliance or non-compliance (2) Fitness of the issue
When is a case moot?
The injury is no longer present.
What are the exceptions to mootness?
(1) Injury capable of repetition (2) voluntary cessation by defendant (3) class actions
What are non-justiciable political questions?
(1) Any cases for or against the republican form of government in the states. (2) Challenges to presidential policies. (3) Impeachments. (4) Challenges to partisan gerrymandering.
What is required for certioari?
Four votes by the supreme court justices.
What cases come under certioari?
(1) State Supreme Court cases and (2) Circuit court of appeals decisions
When does an appeal come before the Supreme Court?
Cases from three-judge federal court skip the court of appeals and go to the Supreme Court by obligation.
What are the Article III forms of original jurisdiction?
(1) Ambassadors, (2) after a final judgment from (a) state court rulings with inadequate and dependant claims, (b) court of appeals, (c) three-judge court, (3)
Over what type of dispute does the Supreme Court have original and exclusive jurisdiction?
Disputes between state governments.
What amendment bars suits against states in federal court?
11th Amendment
May a state be sued in a state court or federal agency?
No, they have sovereign immunity.
When may a state government be sued?
(1) Explicit written consent, (2) Congressional authorization, (3) Federal government suits, (4) Bankruptcy.
Who may be named as a defendant as a means of suing the state government?
(1) Officers and (2) local governments.
What sections of the constitution may be used to sue states?
The 5th and 14th amendment, not the commerce power.
What is abstention?
When a federal court has jurisdiction but declines to exercise it.
When must a federal court abstain?
Federal courts must abstain from enjoining pending state court proceedings.
When may Congress act according to the constitution?
There must be express or implied authority to act.
When may Congress have police power?
(1) Military, (2) Indian reservations, (3) Lands or territories, (4) D.C.
What is MILD?
Military, Indian reservations, Lands or territories, District of Columbia.
What is the Necessary & Proper Clause?
Congress may choose any means not prohibited by the constitution to carry out its authority.
What are Congressional powers?
(1) Taxing & spending, (2) Commerce clause, (3) uniform naturalization rules & bankruptcy laws, (4) raising & supporting military.
What can Congress regulate under the commerce clause?
(1) Channels, (2) Interstate, (3) Local activity with cumulative effect, (4) Can’t regulate inactivity
What are channels?
Waters, highways, the internet, etc.
What falls under interstate?
Trucks, planes, trains, internet, telecoms, insurance or anything going across state lines.
What are local activities that have a cumulative effect?
Growing wheat for personal consumption and growing Schedule I drugs.
What are not eligible under cumulative local activities?
Any non-economic activity such as domestic violence or economic inactivity.
When may Congress regulate non-economic activity?
If it has a substantial economic effect on interstate commerce.
What are the Limits on Federal Power?
Anti-Commandering Principle: Congress cannot compel state legislative or regulatory activity.
What amendment limits Federal Power?
10th Amendment. Any power not granted to Congress or prohibited by states is given to the states and the people.
When may Congress induce state legislative or regulatory activity?
(1) Conditions on Federal grants so long as not unduly coercive, (2) Preventing harmful activities by states.
What may Congress do under the 5th & 14th Amendment?
(1) Cannot create new rights or expand the scope of rights, only remedy wrongs. (2) Must be proportional and congruent to wrongs.
May Congress delegate powers?
Yes, almost without limit. All delegations must provide intelligible standards to guide discretion.
What are the impermissible vetos?
(1) Congressional legislative vetos and (2) Executive line-item vetos.
What are examples of legislative vetos?
One house veto; both houses but no executive approval.
What is a line-item veto?
An impermissible veto of part of a law by the president while retaining the rest.
What may Congress NOT delegate?
Any executive powers for implementation or enforcement of laws.
Where does the Executive branch get power from in the Constitution?
Article II
What are under executive powers?
(1) Treaties and (2) Executive Agreements
What is the hierarchy of treaties?
(1) Constitution > (2) Prior federal statute > (3) earlier Treaty > (4) federal law > (5) later treaty >(6) all executive agreements > (7) all state laws.
What is an executive agreement?
An effective agreement made by the President with another state that does not require Senate approval.
What may an executive agreement do?
The same power as any treaty.
What are the presidential powers?
(1) Treaties, (2) Executive agreements, (3) Recognition power, (4) Immigration: Power over who may be admitted to the US, (5) Commander-in-Chief: use of of forces in foreign countries.
Who has appoitnment power?
President nominates and appoints (1) ambassadors, (2) judges, and (3) officers of the federal state. Congress may appoint “inferior” officers of the federal government.
What is an “inferior” officer?
Any officer that may be fired by the appointed officer or lower federal courts.
May Congress appoint officers for a new agency?
No, Congress may not give or delegate executive power to itself.
What limit on recess power is there?
A president may not appoint someone for a recess less than 10 days.
When may Congress limit removal powers of the President?
(1) If the office is important to be independent of the President, (a) Congress cannot remove the cabinet, (b) Statute cannot limit removal. (c) Cannot remove the head of an agency that has substantial discretion. (2) Impeachment
When can removal from officer occur?
Treason, Bribery, and High Crimes & Misdemeanors
When may a President be impeached?
The house impeaches, but the Senate must convic.
What is the vote requirements for impeachment?
House: Majority; Senate: 2/3rds
What is the scope of Presidential immunity?
The President may not be sued or prosecuted for any conduct while in office, but may be sued for acts prior to taking office.
What is executive privilege?
A President may keep confidential some conversations, documents, and information.
When may executive priviliege be overruled?
When there is an overriding need for the information, such as a criminal trial.
What subpoenas are a president subject to?
(1) Grand jury, (2) Congressional
What are the criteria for subpoenas?
(1) No immunity from state grand juries, (2) Balancing of interests for Congressional subpoenas.
What limit is there upon the Pardon power?
(1) Only federal offenses, (2) no matter that was the subject of impeachment, (3) no civil liability
What is preemption?
The power of Congress to override state and local law.
What are the types of federal preemption over States?
(1) Express, (2) Implied, (3) Taxation, (4) Regulation
When is there express preemption?
When federal law states that it has “exclusive” power in a certain area. E.g. FDA alone can give grades and labels.
How is implied preemption determined?
(1) Mutually exclusive laws preempt the state, (2) State or local law interferes with a federal objective, (3) Field preemption even if not stated explicitly.
What is the state tax preemption?
No State can tax or regulate federal government activity. It is unconstitutional to pay a state tax out of the federal treasury.
What is the test for tax discrimination?
(1) Substantial nexus to taxing state, (2) fair apportionment to activity connected to the state, and (3) fair relationships to services or benefits provided by the state.
What is state regulation preemption?
A state may not impose stricter regulations upon the federal government for activities within the state. E.g. stricter environmental laws.
What is the dormant commerce clause?
If state or local law or regulation puts an “undue burden” upon interstate commerce.
When may a state law burdening interstate commerce be exempted?
(1) Necessary to an important state interest, (2) state is a market participant, (3) traditional government function, and (4) Congress approves.
What is the “privileges & immunities” clause?
It is an Article IV provision preventing out of state citizens from being discriminated against.
When does the privileges & immunities clause apply?
Right to travel
When does a state or local law discriminate against out of state citizens?
If it puts any burden on inter-state commerce that is not justified by the benefits.
What other activities are violations of the commerce clause and article IV?
(1) Out-of-state discrimination, (2) fundamental rights or important economic activity for fundamental rights or important economic activity, (3) not corporation or aliens, (4) must be necessary to achieve a compelling government purpose.
What are the fundamental rights?
(1) Marriage, (2) procreation. (3) child custody, (4) child rearing, (5) keeping family together, (6) contraceptives, (7) voting, (8) travel.
What is a quasi-fundamental right?
(1) Abortion, (2) private sex acts, (3) refusal of medical treatment.
What is an example of a statute not violating an undue burden under the commerce clause?
Elk-hunting license differences in fees are justifiable because it is a hobby.
When may a state tax out-of-state businesses under the constitution?
(1) Must not tax to help in-state business, (2) must have a substantial nexus (e.g. out-of-state businesses subject to sales tax), and (3) must be fairly apportioned.
What is the “state action” doctrine?
All levels of government, not private conduct, are subject to the constitution. However, Congress may impose constitutional standards to private actors.
Who is a “state actor”?
(1) Public functions, (2) excessive entanglement, (3) government funding is insufficient by itself.
When does the entanglement tend to apply?
When racial discrimination is involved, less so when it is a first amendment concern.
What portions of the Bill of Rights does not apply to state & local governments?
The total incorporations have prevailed except (1) 3rd amendment quartering of soldiers, (2) 5th amendment right to grand jury indictment, and (3) 7th amendment right to jury trials in civil cases.
What is “rational basis review”?
The standard of review where a statute must be (1) rationally related to a legitimate government purpose,(2) Any conceivable purpose, even if not actual (deference to government), and (3) the burden of proof is on the challenger.
What is “intermediate scrutinty”?
A law will be upheld if (1) government action is substantially related (narrowly tailored) to (2) an important government purpose, (3) the burden of proof is on the government.
What type of purpose is acceptable in intermediate scrutiny?
It must be ACTUAL and IMPORTANT.
What is “strict scrutiny”?
It May only be upheld if it is (1) necessary, (2) to achieve a compelling purpose, and (3) the burden of proof is on the government.
What is procedural due process?
If the government follows adequate procedures for depriving life, liberty, and property.
What is substantive due process?
Did the government have adequate REASON to for taking life, liberty, and property. Usually economic liberties or privacy.
What is equal protection?
If the government unequally applies a deprivation to different classes.
How should the process be determined?
(1) Was it about how I was heard? : Procedural, (2) Why was I deprived? Substantive (3) Was I treated differently: Equal protection.
What is a deprivation of liberty?
(1) Institutionalization of a majority must be preceded by notice & hearing, (2) Parent institutionalizing a minor requires only a fact-finder, (3) harm to reputation by itself is NOT a loss of liberty.
When is there an entitlement?
If there is a reasonable expectation of a continued receipt of a benefit.
When is there a deprivation in procedural due process?
The deprivation is (1) negligent or reckless, (2) conduct shocks the conscience, and (3) doesn’t include failure to protect.
What is the balancing test for procedural due process?
(1) importance of interest to individuals (2) ability of procedures to increase the accuracy of fact-finding, and (3) government interest.
What kind of due process is required for corporeal punishment?
None.
