Con Law Flashcards
Justiciability requirement
Fed courts can only hear cases & controversies:
1) what the case is requesting?
Advisory opinions - opinions that lack an actual dispute between adverse parties or legally binding effect on the parties.
2) when is it brought?
Ripeness vs. mootness
Ripeness = fit for a judicial decision; and P would suffer hardship in the absence of review
Mootness = P must be suffering from an ongoing injury or case is moot.
*EXAM: look for facts indicating an activity would be hard to restart.
3) who is bringing it? Standing i. injury in fact (particularized [personal] injury + concrete [actual] injury) ii. causation iii. redressability
Standing of organizations
Orgs may sue on behalf of members if (1) injury in fact to members; (2) injury = related to org’s purpose; AND (3) individual member participation in the suit is not required.
Standing for free speech over breadth claims
Person has standing to bring a free speech claim alleging govt restricted substantially more speech than necessary even if that person’s own speech would not be protected under 1A.
[does not apply to commercial speech]
Sovereign immunity and the 11A
SCOTUS held that doctrine of sovereign immunity reflected in 11A bars a private party’s suit against a state in federal and state courts.
Sov Immunity also bars claims against state and fed agencies.
EXCEPTIONS:
- States can be sued if they consent by waiver.
- Can sue local govts and entities
- States can sue other states
- Fed govt can sue states
- Bankruptcy - states lack sov immunity
- Can sue state officials for (1) actions to enjoin an officer from future conduct that violates the Con/fed law; and (2) actions for damages against an officer personally.
NOTE: Congress can remove a state’s immunity for actions created under the 14A power to prevent discrimination, but must be unmistakably clear that Congress intended to remove Sov Immunity.
Political Qs will NOT be decided. See examples below.
Challenges based on Rep form of Govt clause of Art. IV;
Challenges to congressional procedures for ratifying con amendments;
The president’s conduct of foreign policy;
partisan legislative apportionment (gerrymandering).
SCOTUS jx
Original - cases involving ambassadors; public ministers; consuls; and those in which a state is a party.
Appellate - will only hear case after there has been a FINAL judgment by the lower court in 1 of 2 ways:
- WRIT OF CERTIORARI (DISCRETIONARY)
–> cases from highest state court where constitutionality of a federal stat/treaty/state law is in issue; OR a state statute allegedly violates fed law;
–> all fed courts of appeals)
- APPEAL (RARE / MUST HEAR THESE!) - confined to grant/denial of injunctions.
NOTE: SCOTUS will not exercise jx if state court judgment is based on adequate and independent state grounds - even if fed issues are involved [if a state court decision rests on two grounds, one state and one federal, and if SCOTUS’ reversal of the fed law ground will not change the result in the case, then SCOTUS cannot hear the case.
Congress can exercise any enumerated powers under Art I, Sec 8 of Con + any powers necessary and proper to carry out enumerated powers.
Congress = no general police power BUT police power over DC, fed lands, military bases & indian reservations
Necessary and Proper Clause
Standing alone, cannot support federal law. Must be in conjunction with another fed power.
Tax and Spending Power
Tax and spend for gen welfare. May be for ANY PUBLIC PURPOSE not prohibited by the Con.
NOTE: non-spending regulations cannot be supported by the General Welfare clause.
Spending Power conditions
Congress can impose conditions on money grants to state/local govts. Conditions valid if (1) clearly stated; (2) related to the purpose of the program; (3) not unduly coercive; and (4) don’t violate the Con.
Taxes are generally valid
Most fed taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare.
Commerce Power (CIA)
Congress has the power to regulate all foreign and interstate commerce, as well as commerce with indian tribes.
Fed law regulating commerce MUST:
- regulate channels of interstate commerce
- regulate instrumentalities of interstate commerce/persons and things in interstate commerce OR;
- regulate activities that have a substantial effect on interstate commerce.
INTRAstate activity
when congress attempts to regulate intrastate commerce under the third prong, Court will uphold if rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.
10A limitation on commerce regulation
Court has interpreted 10A to preclude congress from regulating NONECONOMIC intrastate activity in areas traditionally regulated by state or local govts
Under the Commerce Clause, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce.
*IMPT civil rights tool
Congress has exclusive postal power
Congress has plenary power over aliens
Aliens have NO right to enter the US and may be refused entry based on their political beliefs. However, resident aliens must have notice and a hearing before they can be deported.
Investigatory power
Congress has broad implied power to investigate to secure info for potential legislation or other official action. Investigation must be expressly/impliedly authorized by the appropriate congressional house.
+ subpoena of Presidential info: Congress can subpoena pres’ personal info -must advance a legitimate legislative purpose. Court will balance Congressional interests vs. Pres burdens
Delegation of Leg Power
Leg power may be delegated as long as there is an intelligible standard and power is not uniquely confined to Congress.
Bicameralism & Veto Power
To pass a law, Congress must use bicameralism (passage of the bill in both houses) + presentment to the president for signature/veto.
President does NOT have a line item veto - can only approve/reject bill as a whole.
Congress does NOT have a legislative veto (amending/repealing existing law without undergoing bicameralism & presentment).
Speech or Debate Clause - Immunity for Fed Legislators
Conduct that occurs in the regular course of the fed leg process and the motivation behind that conduct are immune from prosecution.
BUT note: immunity does not cover bribes, speeches outside congress, or the publication in a press release or newsletter of a defamatory statement originally made in Congress.
Presidential Domestic Power
If Pres acts with express/implied authority of congress, max authority and actions likely valid.
If Pres acts where Congress is silent, constitutionality of action is uncertain and Court will consider circumstances/relevant history. Unlikely to be upheld if usurps other branch’s power.
If Pres acts against express will of Congress and Congress had authority to act, action likely invalid.
Pres appointment power
Can appoint ambassadors, SCOTUS justices, other US officers whose appointments are not otherwise provided for in the Con with advice/consent of Senate.
Congress may NOT appoint members of a body with admin or enforcement powers.
Pres pardons
May grant pardons for all FEDERAL offenses, but not for impeachment or civil contempt.
Pres veto
If Pres vetos, may still become law if gets 2/3 vote of each house.
Pres must act w/in 10 days if exercising veto power. If fails to timely act, Bill auto vetoed if Congress is not in session. If Congress is in session, bill becomes law.
Pres as Comm in Chief
Can act militarily in actual hostilities against US without congressional dec of war to protect Am lives and property. However, Congress may limit pres.
Challenges to Pres’ conduct as CIC are likely to be viewed as nonjusticiable political questions.
Pres power to make treaties
Pres has power to enter treaties with 2/3 consent of senate.
Treaties are “supreme law of the land” if they are self-executing. State laws that conflict are invalid.
Conflict with Fed Law: last in time prevails.
Conflict with Con: Treaties are INFERIOR to the Con.
Exec Agreements
Signed by Pres/head of foreign state. Can be used for any purpose that treaties can be used for. DO NOT REQUIRE SENATE APPROVAL.
Conflict w state law: agreement prevails.
Conflict w fed law: fed law prevails.
Executive Privilege
Pres has priv to keep certain presidential communications secret so that the Pres can receive candid advice and protect national security.
EXCEPTION: presidential communiques will be available to the pros where a need for such information is demonstrated. Pres is subject to state criminal subpoena of the President’s personal records.
Impeachment
Pres, VP and all civil officers subject to impeachment.
Requires majority of the house and 2/3 senate.
Federalism - 10A
Under the 10A, all powers not granted to the fed govt or prohibited to the states are reserved to the states and the people.
States have gen police power to regulate health, safety, welfare of their people. Upheld under rational scrutiny UNLESS burden fund right or suspect/quasi sus class.
Federal Taxation and Reg of State/Local govts
Congress can subject state and local govt activities to regulation/taxation if the law or tax applies to BOTH public and private sectors.
However, 10A limits Congress’s power to regulate the states alone by requiring the states to act in a particular way (Congress cannot commandeer the states to enact state laws or enforce federal ones).
State taxation and regulation of fed govt
state may not directly tax fed instrumentalities without the consent of congress. However, nondiscriminatory indirect taxes are permissible if they do not unreasonably burden the fed govt.
Field preemption
a valid fed law may impliedly occupy the entire field, thus barring any state/local law even if the state or local law is nonconflicting.
Privs and Immunities Clauses - ART IV - Privs of state citz
Art 4 interstate privs and immunities clause prohibits discrimination by a state against nonresidents when the discrimination concerns either important commercial activities or fundamental rights. BUT applies only if discrimination is intentionally protectionist.
Invalid unless the law is necessary to achieve an important govt purpose and there are no less restrictive means available.
NOTE: corporations and aliens are NOT protected by this clause (protected by 14A DP and Equal Protection)
14A - Privs of National Citizenship
States may not deny their citz the privs or immunities of national citz. Corporations are not protected by this Clause.
Regulation of Interstate Commerce
When Congress regs interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted.
If Congress has not enacted laws re. the subject, a state or local govt may regulate local aspects of interstate commerce. To do so, the state or local govt must NOT discriminate against or unduly burden interstate commerce. If it does, the reg will violate the commerce clause.
- Re. Discriminatory Regulations: almost always invalid, but MAY be valid if it is necessary to achieve an important, non economic state interest and no reasonable nondiscrim. alternatives
- Re. NonDiscrim Regulations: valid UNLESS burden on interstate commerce outweighs the promotion of the legit local interest.
NOTE: diff standards apply for state control of corporations - state interest in governing corps created in their states.
EXCEPTIONS!
- Congressional Approval - Congress may permit/prohibit state regs that otherwise violate/be upheld under the Dormant Commerce Clause.
- State as market participant - state or local govt may prefer its own citz receiving state benefits/dealing with govt owned businesses. HOWEVER, once a state sells state owned resources, it cannot control what happens after that.
EXAM! Fact patterns involving state reg affecting interstate commerce:
Does Q refer to fed leg that might: (1) supersede the state reg or preempt the field; OR (2) authorize state reg otherwise impermissible?
If neither is dispositive, does the state reg discriminate against interstate/out of state commerce or place an undue burden on interstate commerce?
If discriminatory, invalid unless:
- it furthers an important, noneconomic state interest AND there are no reasonable nondiscriminatory alternatives OR
- the state is a market participant
If non-discriminatory but burdens interstate commerce, invalid if the burden on commerce outweighs the state’s interest.
