Con Law Flashcards
For purposes of the bar exam, the Constitution can be divided into a few main parts:
- The main body (establishes a federal government with limited power and divides that power among three branches)
- the Bill of Rights, and
- the Civil Rights Amendments.
Federal judicial power (derived from Article III) extends to cases involving:
- Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws
- Disputes between states, states and foreign citizens, and citizens of diverse citizenship
Congress can define the original and appellate jurisdiction of these courts but is bound by the standards set forth in ____ concerning subject matter and party jurisdiction and the requirement of a “case or controversy.” Congress
Article III
Federal courts can hear a matter only if there is a ____
“case or controversy.”
Whether there is a “case or controversy” (that is, whether a case is “justiciable”) depends on:
- What the case is requesting (is it an advisory opinion?)
- When it is brought (is it ripe or moot?)
- Who is bringing it (does the plaintiff have standing?)
Federal courts cannot issue advisory opinions, which are decisions that lack
(1) an actual dispute between adverse parties, or (2) any legally binding effect on the parties
The federal courts can still provide ____ review of a law (that is, by declaratory judgment action) without rendering an advisory opinion, assuming the “case or controversy” requirements discussed in this section are met.
pre enforcement
Ripeness
To avoid issuing advisory opinions, courts wait until laws and policies have been formalized and can be felt in concrete ways.
A plaintiff can establish ripeness before a law or policy is enforced by showing two things:
- The issues are fit for a judicial decision (The more the case involves legal as opposed to factual issues, the more likely the case will be fit for review)
AND - The plaintiff would suffer substantial hardship in the absence of review
Mootness
A live controversy must exist at all stages of review. Therefore, the plaintiff needs to be suffering from an ongoing injury, or else the case will be dismissed as moot.
A claim is not considered to be moot in the following situations, even
if the injury has passed:
- Controversies capable of repetition but that evade review because of their inherently short duration
- Cases where the defendant voluntarily stops the offending practice but is free to resume it (turns on the facts)
- Class actions in which the class representative’s controversy has become moot but the claim of at least one other class member is still viable
____ bars consideration of claims before they have been developed; ____ bars their consideration after.
Ripeness; mootness
A person must have ____ at all stages of litigation, including on appeal.
standing
Elements of standing
injury, causation, and
redressability.
People have no standing merely as ____ to claim that government action violates federal law or the Constitution. The injury is too generalized.
“citizens” or “taxpayers”
To have standing, a person needs to show an injury in fact, which requires both:
- A particularized injury—an injury that affects the plaintiff in a personal and individual way AND
- A concrete injury—one that actually exists (that is, not hypothetical)
A taxpayer has standing to challenge their own ____ bill.
tax
A person may have standing to allege that federal action violates the ____ by interfering with powers reserved to the states as long as the person has a redressable injury in fact
Tenth Amendment (for example, deputy sheriffs required to do handgun checks under federal law challenging the law as a violation of the Tenth Amendment).
People have standing to challenge congressional spending measures on First Amendment ____ grounds
Establishment Clause
For a taxpayer to have standing to challenge spending on Establishment Clause grounds as such, Congress’s ____ power must be involved. Thus, for example, a person would not have standing as a taxpayer to challenge federal government grants of surplus property to religious groups (because Congress is using the property power rather than the spending power) or expenditures of general executive branch funds (because the executive branch is doing the spending, not Congress).
spending
A claimant with standing in their own right may assert the rights of a third party if:
(1) it is difficult for the third party to assert their own rights, or
(2) a close relationship exists between the claimant and the third party.
An organization has standing to sue on behalf of its members if
(1) there is an injury in fact to the members,
(2) the members’ injury is related to the organization’s purpose, and
(3) individual member participation in the lawsuit is not required (for example, they’re not seeking individualized damages).
A person has standing to bring a free speech claim alleging that the government restricted _____, even if that person’s own speech would not be protected under the First Amendment.
substantially more speech than necessary (in other words, that the restriction was overbroad)
-> Essentially, the plaintiff can bring a claim on behalf of others whose speech would be protected under the First Amendment.
The exception to standing for first amendment over-breadth claims does not apply to ____
commercial speech