Con Law Flashcards
Requirements for Justiciability
Federal court can only address actual case or controversy
* 1) No Advisory opinion
* 2) Ripe Not Moot
* 3) Plaintiff must have Standing
Why No Advisory Opinions?
Lacks:
(1) an actual dispute between adverse parties.
(2) any legally binding effect on the parties.
Requirements of Ripeness
Generally laws and policies must have been formalized and felt in concrete ways.
* Exception: A plaintiff can establish ripeness before a law or policy is enforced by showing
1) the issues are inherently legal, not factual AND
2) The plaintiff would suffer imminent substantial hardship in the absence of review
Can address a new law that is not yet in force but would harm the plaintiff, only if the law will be in force soon.
Taking a “substantial step” to open a business that will be harmed/prohibited by a statute is sufficient for standing/ripeness
Requirements of Mootness
- Requires ongoing injury.
- Unless:
o The issue is capable of repetition but evading review because of an inherently limited duration. (laws requiring a one-year residency duration for voting).
o Defendant voluntarily stops the harm but can resume (strip club violating an ordinance closes to avoid lawsuit).
o Class action with at least one live claim.
Elements of Standing
1) Injury in fact – must be
A) Particularized (personal and individual harm)
B) Concrete (actual or imminent harm).
2) Causally related to the conduct complained of
3) Redressable through damages or equity.
Generally no standing for citizens or taxpayers with ideological or generalized grievances to policies or tax usage.
* tax payer can challenge own tax bill
* Congressional spending challenges on First Amendment Establishment Clause grounds.
Generally No Third-Party standing
* difficulty
* close relationship
* Organizationon behalf of members if: 1) members harmed 2) in ways relating to orgs purpose 3) individuals do not need to participate in suit.
* free speech overbreadth
* plaintiff in zone of interest of federal statute.
Sovereign Immunity and the Eleventh Amendment Limit on federal court jursidiction
Bars a private party’s suit against a State in federal and state courts.
Exceptions:
* When State Expressly Waives immunity:
* Congress may abrogate state immunity by creating private causes of action under the 14th Amendment.
* Inter-sovereign litigation:
* Local Governments and Entities
* Bankruptcy if you owe the state money.
* State Officials (1) for damages personally or (2) to enjoin the official from future conduct that violates the Constitution or federal law.
Unsettled question of state law limitation on federal court jurisdiction
Case relies on an unsettled question of state law.
Political Question
Issues that are (1) constitutionally committed to another branch of government or (2) inherently incapable of judicial resolution.
List of Legislative Powers
- Taxing and Spending Power
- Commerce Power
- War Powers
- Investigatory Power
- Property Power
- Postal Power
- Citizenship
- Admiralty
- Coin Money
- Patent/Copyright
Details of Taxing Power
Congress can pass laws under taxing power as long as
* the tax has some reasonable relationship to revenue production or
* if the law appears to be an exercise of congresses power to regulate.
Congress may tax and spend for the “general welfare”
can tax people for failing to purchase things!
details of spending power
Congress can spend for the “general welfare” as long as the expenditure is not conditioned on requiring a recipient to forgo an individual constitutional right.
Strings attached to federal spending must be:
* Clearly stated.
* Related to Purpose (highway dollars conditional on state drinking age minimum)
* Not Unduly Coercive (ACA example – cutting all Medicare funding if states don’t comply)
* Not unconstitutional
what three elements of commerce can congress regulate
Under the Commerce Clause, federal law regulating foreign or interstate commerce must concern one of the following:
(i) channels
(ii) instrumentalities
(iii) Activities that have a substantial effect on interstate commerce, inlcuding intrastate activities.
* Congressional regulation of intrastate economic or commercial intrastate activity needs only a rational basis for concluding that the activity in aggregate substantially affects interstate commerce.
* Where Congress seeks to regulate noneconomic or noncommercial intrastate activity under the Commerce Clause, Congress must make a factual finding that the activity regulated has a substantial economic effect on interstate commerce
Delegation of legislative powers
- must include an intelligible standard.
- General standards usually suffice.
the separation of powers doctrine forbids Congress from trying to control the exercise of the power delegated in various ways, such as by overturning an executive agency action without bicameralism
Separation of Powers – Bicameralism and presentment
Congress must use bicameralism and presentment
* No line-item veto (giving the President the power to cancel parts of a bill while approving others)
* No legislative veto (Congress gives itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment)
Executive spectrum of strength
- Express or implied authority of Congress - likely valid
- Congress is silent - constitutionality uncertain, and the Court will consider the circumstances and any relevant history. Unlikely to be upheld if usurps the power of another governmental branch or prevents another branch from carrying out its tasks.
- Against the express will of Congress and Congress had authority to act - likely is invalid
Exclusive state powers
- All powers not granted to the federal government or prohibited to the states are reserved to the states or the people
- States have general police powers (the power to adopt regulations for the health, safety, and welfare of citizens). Generally, they need only be rational.
- A police power regulation that conflicts with a federal law is invalid under the Supremacy Clause.
Anti commandeering principle
Congress can’t commandeer the states by requiring them to enact state laws or to enforce federal laws, but can prohibit them from violating federal laws.
Three types of preemption
Express Preemption
* Federal law expressly states that it preempts state law. Will be narrowly construed.
Implied Preemption
* Conflict between state and federal law.
* A state or local law prevents achievement of a federal objective, even if enacted for a valid purpose.
* States cannot go below the federal floor, but may regulate above unless there is express or field preemption.
Field Preemption
* A valid federal law may impliedly “occupy” the entire field, thus barring any state or local law even if the state or local law is nonconflicting. The courts will look at the regulatory scheme to determine whether Congress intended to preempt the entire field.
Article 4 – (Privileges AND Immunities)
Protects Privileges of state citizenship.
* Prohibits discrimination by a state against nonresidents when the discrimination concerns either important commercial activities (such as the pursuit of a livelihood) or fundamental rights and is intentionally protectionist.
* doesn’t protected corporations or aliens.
* To be valid, a descriminaroty law must be necessary to achieve an important government purpose:
1) (nonresidents either cause or are part of the problem that the state is attempting to solve) and
2) there are no less restrictive means available.
Also considered alongside the dormant commerce clause.
14th amendment (Privileges OR Immunities)
- Protects privileges of national citizenship. States may not deny their own citizens the privileges or immunities of national citizenship. Corporations not protected.
- A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest. Subject to strict scrutiny.
- Also consider equal protection
