Con Law Flashcards
What is state sovereign immunity per the 11th Amendment?
You can’t sue a state government for money damages in federal court
This immunity extends to suits against state officials for a violation of state law, regardless of the type of remedy that is sought.
What are the exceptions to state sovereign immunity?
1) Congress clearly abrogates (waives) state sovereign immunity by enforcing rights under the 13th, 14th, or 15th amendments
2) the state govt. consents to be sued
what is original jurisdiction as created in Article 3?
SCOTUS’ ability to directly and firstly hear a case. Arises in 2 situations:
1) when a state is a party to the suit
2) when a case affects a consul, public minister, or ambassador
What discretion does SCOTUS have to decide what cases they hear?
SCOTUS has total discretion. They get total control over which cases go on their docket, unless one of these 2 exceptions applies:
1) Congress has created an exception per Article 3 so SCOTUS must hear the case; or
2) SCOTUS can’t hear a state court case if there is adequate and independent state grounds (AISG) to decide the case
When does the adequate and independent state grounds (AISG) standard apply to preclude a court from hearing a case?
1) state law fully resolves the matter, so the outcome of the case is not affected by federal law (adequate) and
2) the state court did not rely on federal law to reach its decision (independent)
What are the required elements for someone to have standing to sue?
1) injury in fact: a particularized and concrete injury suffered by plaintiff
2) causation: plaintiff’s injury was caused by defendant’s violation of the law
3) Redressability: the relief requested must be able to remedy or prevent the injury suffered
What relationships give rise to third party standing to sue?
1) doctor can raise the constitutional injuries of their patient
2) bartender can raise the constitutional injuries of their patron
3) school can raise the constitutional injuries of a student
4) parent can raise the constitutional injuries of their minor child
What are the two timeliness doctrines that can render a case untimely?
1) Mootness: case is overripe to the point where there’s no controversy left to resolve
2) Ripeness: The case must be fully developed before a federal court will hear it (i.e., the plaintiff suffered an actual injury)
what is the political question doctrine?
A rule that political questions are non-justiciable (can’t be ruled on by the court)
A question is a political question if:
1) the Constitution assigns decision making authority for this subject to a different govt. branch; or
2) The matter depends so heavily on that person’s discretion, that there is no law for the court to apply
What are the 4 abstention doctrines?
1) Younger Abstention: abstaining because the case involves an unsettled state law issue
2) Pullman Abstention: abstaining because the case is an ongoing state criminal case
3) Burford Abstention: abstaining because the parties are seeking an injunctive relief that would interfere with complex state regulatory schemes
4) Colorado River Abstention: abstaining because the case is substantially similar to another ongoing state court case
What are the 4 biggest powers of Congress?
- Power to tax (Article 1, Section 8 Taxing Clause)
- Power to spend (Article 1 Spending Clause)
- Power to regulate commerce (Commerce Clause)
- Power to enforce civil rights laws
Via their Article 1 Spending Power, can Congress incentivize states to adopt certain behavior by imposing conditions on federal funding?
Yes, so long as they aren’t coercing the state behavior too heavily
ex. In South Dakota v. Dole, SCOTUS allowed Congress to withhold state highway funding until South Dakota cracked down on their drunk driving epidemic
What can’t Congress use their Article 1 Spending Clause powers to do?
1) Coerce states into certain behavior (ex. force all states to adopt a new Medicare scheme)
2) enforce conditions that are ambiguous and/or unrelated to the program they’re pushing
3) impose unconstitutional conditions (ex. requiring Minnesota to enact slavery in order to receive their federal highway funding)
What is the 13th Amendment?
Amendment that banned slavery and “badges or incidents” of slavery. This gave Congress the power to actively regulate private and govt actions.
What is the 14th Amendment?
Contains the equal protection and due process clauses.
Allows Congress to enforce violations of equal protection and due process rights, but only as they’re defined by the courts (Congress can’t expand the scope of what rights fall within the 14th Amendment)
How does a court determine whether Congress’s enforcement of a certain 14th Amendment right doesn’t expand the scope of the 14th Amendment?
Congruence and proportionality test: there must be a reasonable fit between the constitutional right that’s been injured/violated, and the action Congress is using to remedy that injury
What is the 15th Amendment?
Voting rights. It prohibits any state and/or local govt. from denying someone the right to vote based on race
Other than the big 4 powers, what other powers does Congress have?
1) war powers. Congress can declare war, raise an army, and regulate the army
2) Power to establish a post office.
3) Power over non-citizens
4) Power to control the naturalization process of immigrants
5) Power to regulate federal elections
6) Necessary and proper Clause: catchall that lets Congress pass any law that’s necessary and proper to execute a power they hold
Which branch has the power to create executive offices, and which has the power to appoint officers?
Congress creates offices, the President creates officers
Which branch has the power to negotiate and form treaties?
The President has the power to negotiate treaties, but the Senate must approve the treaty by a 2/3 supermajority
How do the Presidential pardon powers work?
The President can pardon someone for a federal offense. They cannot pardon a government impeachment.
How does a President’s executive immunity work?
They’re immunity from lawsuits over actions taken within their official capacity as President.
They are not immune for things done before they took office, or things they did in their own private capacity.
Is Congress allowed to delegate their powers to executive agencies?
Yes, although they must provide an intelligible purpose that guides how the agency uses their power.
Congress cannot delegate purely legislative duties/powers, such as the power of impeachment, repealing/making laws, or to declare war
Do judges have judicial immunity?
Yes. judge has total immunity for their judicial acts.
That immunity doesn’t cover actions taken in their private capacity
Do legislators have immunity?
Yes. the Speech and Debate Clause protects federal legislators from liability for anything said during the
course of the regular legislative process.
These protected statements cannot be used as evidence in any lawsuits. The protection also extends to legislative aides.
What exclusive powers does the federal government have (things the state govts can’t do)
- Print/coin money
- Tax the import of goods
what does the Supremacy Clause say?
Federal law always trumps conflicting state law. Federal govt. also has several powers over the states.
If there are two state and federal laws that don’t directly conflict, they can exist concurrently.
What is the Dormant Commerce Clause?
An implied part of the Commerce Clause that limits the ability of state govts to legislate in ways that impact interstate commerce.
What is the basic rule of the Dormant Commerce Clause?
states can make their own regulatory laws so long as they do not:
1) discriminate against out of state commerce; or
2) unduly burden interstate commerce; or
3) purposefully regulate wholly out of state commerce
Can a state govt regulate the federal govt?
No. States are barred from passing laws to regulate, shielding state citizens from federal liability for violating federal laws, or taxing the federal govt, unless Congress consents
Can the federal govt regulate state govts?
In certain ways. The federal govt can require that states must comply with federal laws/regulations.
However, federal govt cannot directly commandeer state govts and force them to enact certain state laws or enforce a federal law.
Under the Dormant Commerce Clause, when can a state law that discriminates against out of state commerce survive?
1) There is a legitimate, noneconomic state interest; and
2) There is no other reasonable, non-discriminatory means available to achieve that interest
Under the Dormant Commerce Clause, when does a state law/regulation unduly burden interstate commerce?
When the burdens it imposes on interstate commerce clearly outweigh local benefits (called Pikes balancing test)
What are the 3 types of federal preemption under the Supremacy Clause?
1) Express preemption: when Congress explicitly says state regulation in an area is preempted by federal law
2) Conflict preemption: when it’s impossible to comply with state and federal law at the same time
3) Field preemption: when federal regulation is so thick that we imply that Congress has determined
there cannot be a concurrent state law in an area because Congress has totally occupied the field
Under the commerce clause’s Dormant Commerce Clause, can a state tax interstate commerce?
Only if:
1) Congress is silent on it 2) the tax doesn’t discriminate against or unduly burden interstate commerce
3) There is a substantial nexus between the taxing state and the property/activity being taxed; and
4) there is a fair apportionment of the tax burden across all states (i.e., can’t tax one specific state)
what is the interstate compact clause?
Allows states to enter into agreements with each other when Congress consents.
Congressional consent s only required for “compacts” that alter the power balance between the state and federal govts
what is an ad valorem property tax?
a property tax based on real or personal property, applied at the time of transaction
What sort of interstate commerce is a state allowed to tax?
States can tax moveable goods that are within their borders. They can also tax instrumentalities of commerce (trains, shipping trucks, etc.) if the instrumentality has a taxable situs or sufficient contact with the taxing state.
However, they cannot tax goods that are merely in transit through the state
What are considered fundamental rights under substantive due process analysis?
1) Right to vote
2) Right to travel
3) Right to privacy (includes right to marry, control child’s education, contraceptives)
4) Right to bear arms
5) Any kind of judicial right (right to appeal, lawyer, etc.)
6) 1st Amendment rights
If you’ve determined that someone’s fundamental rights (life, liberty, property) have been violated under procedural due process, what’s the next step?
Eldridge factors are compared:
1) How serious/fundamental was the right affected by the govt action?
2) Is there a risk of the govt law/regulation erroneously depriving more people of that fundamental right?
3) What’s the value and likelihood of using additional safeguards to stop the deprivation?
4) How serious is the govt’s interest in enforcing the law/regulation?
Under equal protection analysis, to what laws is the strict scrutiny standard applied?
Any law that intentionally discriminates people based on their race, ethnicity, or national origin
Under equal protection analysis, to what laws is the intermediate scrutiny standard applied?
laws that discriminate based on gender or children born out of wedlock
What are de jure segregation and de facto segregation?
De jure is segregation via law (i.e., a law that segregates on its face).
De facto segregation is segregation that happens, but it’s not required by law
De jure segregation is unconstitutional. De facto isn’t.
Via which Constitutional Amendments does equal protection apply?
For states, it’s through the 14th Amendment’s Equal Protection Clause. For the federal govt, it’s through the 5th Amendment.
For a discriminatory law to be unconstitutional under the Equal Protection Clauses, what must be shown?
That the law has a discriminatory purpose. Mere discriminatory impact and/or effect isn’t enough.
Define intermediate scrutiny’s standard of review in the context of equal protection
For a govt action/law to be upheld, govt must show that the law/action serves an important govt interest, and that it’s substantially related to that interest
Under the equal protection analysis, to what laws does the rationality review standard apply?
catchall category; applies in all other instances where
1) strict and intermediate scrutiny don’t (i.e., any discrimination not based on race, gender, ethnicity, or national origin); or
2) the law isn’t facially/intentionally discriminatory
Define rationality review’s standard of review in the context of equal protection.
A govt action/law, to be upheld, needs to be rationally related to a legitimate govt interest (very easy burden to meet)
Define strict scrutiny’s standard of review in the context of equal protection clause
A govt action/law, to be upheld, needs to further a compelling govt interest, and be narrowly tailored so that it’s the least invasive way to achieve that interest
What is the Comity Clause from Article 4?
A part of the privileges and immunities clause that prohibits serious discrimination against out of state people in allowing access to private job markets.
Ex. Minnesota banning any non-Minnesotan from getting a liquor license for their bar.
What is the Takings Clause?
Comes from the 5th Amendment. Allows govt to take private property so long as they’re using it for public use and give the owner just compensation.
What counts as “public use” for a Takings Clause analysis?
A public use is any conceivable public use. The need for the land must be rationally related to that purpose.
Incredibly easy hurdle to clear.
What counts as “taking” under a Takings Clause analysis?
1) taking ownership of the private property and modifying it for public use (ex. putting a highway through someone’s field)
2) Destroying private property in response to a public peril (does not require fair compensation)
3) Giving a third party the right to occupy part of the property or the whole of it (ex. govt lets a utility company come onto the land and install power lines)
