Con Law Flashcards
Ripeness
Something is ripe for review, this mean there is harm actually threatened
Mootness
Something is moot means it won’t be reviewed, something must be real, live controversy at all stages if the issue has been resolved its moot and it won’t be heard UNLESS the situation is capable of repetition but it keeps evading review
Standing
A plaintiff must have standing to bring a suit. Standing is a concrete stake in the outcome at all stages of litigation. To have standing there must be an injury, in fact, causation, and redressability.
Courts won’t issue (2 examples)
- Advisory Opinions
- Won’t hear cases that are adequate and independent state grounds. Federal courts won’t hear appeals from state courts if adequate and independent nonfederal grounds support the state decision.
However, The Supreme Court may grant certiorari to review a case from the highest court in a state that can render an opinion on the matter if a state statute’s validity is called into question under the federal Constitution.
11th Amendment and Sovereign Immunity
A state generally can’t be sued in federal court for damages without the state’s permission. This can be expressly or structurally waived or actions against state officers and removal of immunity under the 14th Amendment are heard in federal court. Under the Eleventh Amendment, a federal court may not hear a private party’s or a foreign government’s claims against a state government. A private state citizen is a private party. As such, the Eleventh Amendment generally bars a private citizen from suing a state government in federal court. A Native American tribe is treated as a private party, and so it is barred from bringing an action against a state government in federal court.
Necessary and Proper Clause
Congress has the power to make laws necessary and proper for executing any power granted to any branch of the federal government
Taxing & Spending Power
Congress can tax and spend for the general welfare and the common defense. If it is revenue-raising it is generally valid. A congressional tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Congress may spend for any public purpose, not merely the accomplishment of other enumerated powers.
When can Congress attach strings to its spending powers?
When it is:
1. Clearly States
2. Not unduly coercive
3. clearly related to the purpose of the grant
Enumerated Powers (18 total - 3 big ones) Article 1 Section 8
- Taxing and Spending Power to tax and spend for the general welfare and the common defense. **
- Power to borrow money **
- To regulate commerce with states, other nations, and Native American tribes. **
- Establish citizenship naturalization laws and bankruptcy laws **
- Coin Money **
- Power to punish counterfeiters of money and stocks
- Power to establish post offices and roads **
- Power to regulate patents and copyrights **
- Power to establish lower courts from the Supreme Court
- Power to establish piracy laws of the sea
- To declare war **
- Power to raise and support Army and Provide and maintain the Navy
- Make rules for the Government and regulation of naval forces
- Power to call a militia (National Guard today)
- Power of regulating a militia
- Power to govern the District of Columbia and properties for federal government purposes **
- Authority to create laws that are necessary and proper to carry out the laws of the land (Necessary and Proper Clause) **
Commerce Power
Under the commerce power congress can regulate the channels and instrumentalities of interstate commerce. Congress may also regulate anything that has substantial economic effect on interstate commerce
Channels of Interstate Commerce
Roads, Rails, Waterways, Phones, etc.
Instrumentalities of Interstate Commerce
Planes, Trains, and Automobiles
Property Power/Clause
Congress has the power of eminent domain (make government property public and charge a fee for it), to dispose of federal property, and to make rules and laws regulating federal lands and Indian reservations. Congress makes all needful rules and regulations respecting the territory or other property belonging to the United States.
Delegation
Congress can delegate its power to other branches when there is an intelligible principle. However, if the agency is seeking to adopt rules having significant financial or political impact it must be able to point to language clearly granting the authority
Speech or Debate Clause
Immunity for Speech made within congress
Legislative Veto
Congress cannot make a law giving themselves the power to overturn executive actions without passing a whole new law and presenting it to the president (bicameralism and presentment requirements).
Domestic Powers of the President
- Appointment and Removal
- Pardon federal crimes
- Veto Power
- Power as chief executive and issue Executive orders
- President’s plenary power to control executive employees is limited by the Constitution.
Domestic Appointment and Removal Power of the President
President can appoint and remove officers and supreme court justices with advice and consent of the senate
Domestic Executive Power of the President
The president can issue executive orders but they can be seen as invalid.
1. If a president issues an EO and has express or implied authority from Congress it is likely valid.
2. If a president issues an EO and Congress is silent on the issue it might be upheld as long as it does not impinge on the powers of another branch (twilight zone)
3. If a president issues an EO and Congress expressly is against it it likely won’t be valid
External Powers of the President
- President may commit troops but not declare war
- Treaty Power
- Executive engreements
External Treaty Power of the President
President can sign treaties with approval of 2/3 of the Senate and the treat is on par with other federal laws and they don’t conflict with the constitution
External Executive Agreement Power of the President
The president can sign executive agreement with other countries and they are enforceable as long as they are not in conflict with federal law, other treaties, or the Constitution
Presidential Immunity
President is immune from civil suits from actions taken as president and it also extended to presidential aides
Presidential Privilege
Any documents and conversations are privileged in criminal cases