Con law Flashcards
Bill of Rights
Individual rights against the federal government
Main Body
Establishes a federal government with limited power
Article 1 - Legislature
Article 2 - executive
Article 3 - judicial
Civil rights amendments 13-15
Guarantee rights against states
Case or controvery
Federal courts can only here matter if there is a case or controversy (justiciability)
- what is the case requesting (no advisory opinions)
- when is it brought (ripe or moot)
- who is bring it (standing)
Advisory opinions
Cannot issue
1) lack an actual dispute between adverse parties
2) lack any legally biding effect on the parties
Ripeness
1) issue for a judicial decision (legal issue)
and
2) P would suffer substantial hardship in the absence of review
Mootness
A live controversy must exist - must be suffering from ongoing injury
Exceptions
- capable of repetition yet evading review - inherently short duration
- D voluntary stops the offending but is free to resume
- Class action where the rep’s controversy is moot but the claim of a class member is still viable
Standing
Must have at all stages including appeal
Components
- injury - particularized and concrete, already occurred or imminent
- causation
- redressibility
Exception to no citizenship standing that government action violates federal law or constitution
1) challenging own tax liability
2) Tenth amendment violation if person has a redressable injury
3) Congressional spending on establishment clause grounds
Standing to assert rights of others
1) difficult for third party to assert own rights
or
2) a close relationship exists
Standing for free speech overbreadth
Can bring even if own speech would not be protected - on behalf of others whose speech would be protected
Does not apply to restrictions on commercial speech
Standing or organizations
Sue on behalf of members
1) injury in fact
2) the members’ injury is related to the org purpose
3) participation in the lawsuit is not required (ie not seeking individualized damages)
Sovereign immunity - 11th
Bars a private party’s suit against a state in federal and state courts
Bars claims against a state in federal and state agencies
Exceptions
- express waiver
- Implicit consent/structural waiver - states yield to certain federal powers
- actions against local governments
- suites by other states or the fed gov
- bankruptcy
- certain actions against state officers (damages personally or injunctions)
- congress can remove state’s immunity to prevent discrimination
Structural waiver to sovereign immunity
Federal power is complete in itself
and
the states implicitly consented to the fed gov exercising that power as part of the plan of the constitution
Political questions
Cannot be decided
1) constitutionally committed to another branch
or
2) inherently incapable of judicial resolution
Original jurisdiction Supreme Court
Cases affecting
- ambassadors
- public ministers
- consuls
- state is a party
Appellate jurisidction
Review constitutionality of acts of other branches of fed gov
review state acts under Supremacy clause
Writs of Cert - discretion
- cases from highest state court where consitit. of a fed statute, treaty, or state statute in issue, or a state statute allegedly violates fed law
- all cases from fed COA
Appeal - mandatory must hear
Adequate and independent state ground
Supreme court will not hear
state law fully disposes of the case and not based on federal case interpretation of identical federal provisions
can still hear if state does not clearly indicate decision rests on state law
(SC reversal on fed law ground will not change the result in the case)
Congress powers
- Enumerated plus any powers necessary and proper to cary out enumerated powers
- taxing and spending for any public purpose/general welfare - can influence behavior but cannot compel
- Commerce power
- war - declare war, raise and support armies, provide for and maintain navy
- investigatory power
-property - can dispose, but need enumerated power to take private property
- exclusive postal power
- power over citizenship
-admiralty, power to coin money and fix weight and measures, patent and copyright power
No general police powers for health, safety, and welfare of nation
exceptions - DC, federal lands, military bases, indian reservations
Spending power conditions
Congress can impose conditions on grant of money if
- clearly stated
- related to purpose of program
- not unduly coercive
- do not violate constitution
Commerce power
Regulate interstate commerce
- channels
- instrumentalities
- activities that have a substantial effect on interstate commerce
Limitation
- cannot regulate nonec intra in areas traditionally regulated by state or local gov
- cannot compel activity, only regulate existing activity
Delegation of legislative pwoers
can delegate rulemaking or regulator power to executive or judicial as long as intelligible standards set and the power is not uniquely confined to Congress
if agency makes adopts regulation with great significance, must be able to point to clear congressional authorization
Separation of powers
Bicameralism and presentment
no line item vetoes
no legislative vetoes - congress gives itself authority to amend or repeal existing law without bicameralism and presentment
Executove power inherent orimplied
Express or implied authority from congress - Authority at max and are likely valid
Congress silent - constitutionality uncertain, cannot usurp power of another branch or prevent that branch from carrying out its tasks
Against express will of congress and congress had authority to act - likely invalid
President powers
-appointment
- removal
- pardons
- veto
- war - no pawer to declar but is commander in chief
- treaty - requires 2/3 of senate
- executive agreement - no consent needed
Treaty conflicts
With federal law - last in time wins
with constitution - constitution wins
Executive agreement conflicts
With state law - agreement wins
With fed law - fed law wins
Impeachment
Majority vote of house to bring charges and 2/3 senate to convict and remove
Executive privilege and immunity
Privilege - certain presidential communications
- exception - criminal proceeds where need is demonstrated
Immunity - absolute from civil damages during official responsibilities
State general police powers
upheld if rational
health, safety, welfare
Anti-comandeering
Congress cannot commandeer states by requiring them to enact state laws or to enforce federal laws
exception - civil rights- restrict states from discriminating or violating due process
- tax or regulation applying to state and private entities (min wage law)
Preemption
Express
Implied
- conflict between state and fed law requirements - impossible to follow both
- state prevents achievement of fed objective
- field preemption (ie comprehensive or agency formed)