Con Law Flashcards
What article does federal judicial power come from?
Article III
Justiciability: When can a federal court hear a matter?
- What the case is requesting (Is it an advisory opinion?)
- Decisions that lack (1) an actual dispute between adverse parties, or (2) any legally binding effect on the parties - When it is brought (ripe or moot)?
- Who is bringing it (does the plaintiff have standing)
How can a plaintiff establish ripeness before a law or policy is enforced?
- The issues are fit for a judicial decision AND
- The plaintiff would suffer substantial hardship in the absence of review
If they can’t prove either, then it would be moot.
Mootness
A live controversy must exist at all stages of review. The plaintiff needs to be suffering from an ongoing injury.
Exceptions
-capable of repetition but evades review
(f the issues may arise again and will often or always face timing challenges)
-D voluntarily stops but can resume
-class actions with one live claim
Three major components of Standing
- Injury (any concrete and particularized to the plaintiff harm)
-has occured or imminent
-likelihood of future harm - Causation: injury traceable to defendant
- Redressability: win can remedy injury
Citizenship Exception to Standing
- No citizenship standing based on general claim that the government violates fed law or constitution unless there is a particularized injury
-Can challenge tax spending from the legislative branch and not the executive branch
The major exception to this rule is where the taxpayer alleges that the expenditure was enacted under Congress’s taxing and spending power and exceeds some specific limitation on that power, in particular the Establishment Clause.
May a claimant have standing to assert the right of a third party?
Yes only if
1. It is difficult for the third party to assert their own rights, or
2. a close relationship exists between the claimant and third party.
no commercial organizations
Standing of organizations to sue on behalf of its members
Yes, if there is:
- An injury in fact to the members
- The member’s injury is related to the organization’s purposes, and
- members participation not needed (not seeking individualized damages)
Standing for free speech overbreadth claims
A person has standing to bring a free speech claim if the government’s restriction was overbroad even if that person’s own speech would not be protected under the first amendment. P can bring a claim on behalf of others whose speech would be protected under 1st amendment.
(e.g. publisher of pornhub (not constitutionally protected challenges an internet indecency ban on behalf og those with non-obscene websites)
Exceptions to Sovereign Immunity
- Waiver
-Express (state has waived it)
-Structural (when a fed power is complete in itself AND the states implicity consented to the fed gov exercising that power as part of the plan of the constitution) - States can sue other states
- Fed gov can sue states
- Bankruptcy
- State officials
- Congress removes the immunity
Supreme Court jurisdiction over state court decision
no review of state court decision if adequate and independent state ground
Exceptions to general police powers for congress
fed alnds, native american rez and DC
Necessary and Proper Clause
Congress can make laws that are needed to carry out its other powers listed in the Constitution. It’s like saying, “Congress can do what it needs to do to get the job done.”
Taxing and Spending Power
Congress may tax and spend to promote general welfare. May be for any public purpose not prohibited by the Constitution
Can impose conditions on the grant of money to state or local governments if
1. clearly stated
2. relate to the purpose (highway spending for schools not allowed)
3. not unduly coercive AND
4. constitutional
Commerce Power
Congress can regulate commerce w/ foreign nations, with Native American tribes and among states
Can only regulate not compel
Can prohibit private discrimination in activities that might have a substantial effect on interstate commerce
What does interstate commerce include?
- Channels (internet, telephone lines, highways, etc.)
- Instrumentalies (how they move from one place to another, planes, cars, etc.)
- Local activities with aggregate effects
(how is your local prices going to affect the national price for example)
Interstate commerce limitations
10th Amendment, can’t regulate or compel noneconomic activity traditionally regulated by states
Delegation Doctrine
congress can delegate power but must include intelligible standards (usually general standard suffices)
But Major Questions Doctrine: bars agencies from resolving questions of “vast economic and political significance” without clear statutory authorization
-it’s a principle used to decide whether Congress has delegated a big enough authority to an agency to interpret major questions of law. So, it’s like deciding who gets to make the big decisions when it comes to important rules or laws.
Separation of Powers
- No line item veto (President can’t amend bill by crossing out lines, sign or veto only)
-Needs bicameralism and presentment - No legislative vetoes
What source of power: Congress prohibits hunting on federal lands?
Property power
What source of power:congress bars racial discrimination at places of public accomodation?
Commerce clause
What source of power: congress enacts divorce laws for DC
General fed police power for dc
What article does presidential power derive from?
Article II
What are implied presidential powers?
Implied presidential powers are authority granted to the President that isn’t explicitly stated in the Constitution but is inferred from the President’s role as the head of the executive branch. These powers are based on the President’s duty to execute the laws and manage the affairs of the government effectively.
-Strongest when authorized by Congress
-Twilight Zone: when President acts where Congress is silent, constitutionality is silent
-Acts against congress’ will, action likely is invalid
President’s appointment powers
ambassadors, scotus justices, and other officers of the US whose appointments are not otherwise provided for in the constitution
can remove high level, purely executive officers at will (congress can only do so through an impeachment process)
Treaty Power
- Negotiated by President
- Approved by 2/3 Senate
- if doesn’t need legislation implemented by senate then it is a self executed treaty then it will trump state law
-if it conflicts with fed law, last in time rule
-but constitution trumps it all
Executive Agreements
No senate approval
way for the President to make agreements with other countries without needing formal approval from the Senate, which is required for treaties. These agreements can cover things like trade, security, or other important issues. While they’re not as formal as treaties, executive agreements still carry weight and are legally binding.
Constitution > fed law > exec agreements > state law
10th Amendment
powers not granted to fed gov are reserved to states or power
-state police power: rational basis, legitimate purpose
-anti-commandeering: federal government can’t force state governments to carry out or enforce federal laws or regulations.
-can use spending power to entice local officials to enforce fed law (immigration)
Supremacy Clause
provision in the United States Constitution that establishes the Constitution, federal laws enacted pursuant to it, and treaties as the “supreme law of the land.” This means that if there is a conflict between federal and state laws, the federal laws prevail
Preemption (Express and Iplied )
Express: preemption refers to a situation where a federal law explicitly states that it overrides or preempts state or local laws on the same subject matter. In other words, when a federal statute contains language expressly stating that it preempts any conflicting state or local laws, those state or local laws are invalidated to the extent of the conflict. This can occur when Congress explicitly intends to regulate a particular area comprehensively, thereby displacing any inconsistent state regulations.
Implied preemption: when a federal law doesn’t explicitly state that it overrides state or local laws, but its purpose or scope suggests that it should take precedence over conflicting state laws. Essentially, it’s when the federal law’s existence or nature implies that it should be the ultimate authority in a certain area, even if it doesn’t expressly say so.
Privileges and Immunities Article IV
Prohibits states from discriminating against out-of-state citizens. a promise to treat everyone fairly no matter where they come from.
-important commercial activities and ability to earn a living
-Only U.S. citizens (not corps)
-Not absolute (can discriminate if the state law is to achieve a necessary purpose and there’s no alternate route)
14th Amendment
Equal Protection: This means that all citizens are entitled to equal treatment under the law. States cannot discriminate against individuals based on characteristics such as race, ethnicity, gender, or religion.
Due Process: This guarantees that individuals have the right to fair treatment and legal procedures. It ensures that people cannot be deprived of life, liberty, or property without proper legal processes.
Citizenship Rights: The 14th Amendment defines citizenship and ensures that all persons born or naturalized in the United States are citizens, with equal rights and protections.
Privileges and Immunities: prohibits states from unfairly treating citizens from other states. It ensures that citizens have certain basic rights and protections regardless of where they live.
Right to federal protection on the high seas
