Con Law Flashcards
General approach for a Con Law Question
One of 3 Clusters of issues: (1) Justiciability (2) Governmental Conflicts/Power (3) Individual Rights.
(1) Justiciability = RAMPSE
(2) Govt Conflicts = Separation of Powers; Limits on/Sources of Fed Power; Federalism (Dormant CC, P&I, Preemption)
(3) Ind. Rights = State Action; Free Speech; Religion; EQP; Substantive and Procedural Due Process
Justiciability Analysis
To be considered, case must be a case or controversy: no advisory opinions allowed. Then see RAMPSE:
Ripeness = the issue must be developed – P must have suffered or be immediately going to suffer harm
Abstention = Ct can refrain from deciding case, esp when can rely on state law / unsettled state law Q
Mootness = controversy must exist at all stages of review
Political Question = certain sensitive political issues cannot/will not be decided by court.
Standing = must have an injury in fact, causation, redressability
Eleventh Amendment = fed ct cannot hear private party’s claim against a state unless against state officer (and doesn’t take $ from state coffers), state consents, or Cong removes state immunity. However, local gvt/state officers can be sued
Case or Controversy Requirement
SCOTUS can only hear actual cases or controversies, no advisory opinions.
Ripeness
For a case to be justiciable, it must be ripe: the issues must be mature and not abstract.
Two factors to help determine ripeness:
(1) Fitness of issue for judicial decision: namely, is the harm real or immediate, not far away or abstract.
(2) the hardship that would befall the plaintiff by waiting for a violation of his rights before judicial proceedings. Ex: law preventing noncitizen from owning land, noncitizen could sue before buying land and having it taken away, due to major harm incurred if he had to take that path.
Abstention
If a question a question of fed law is based on an unsettled state law question, court should abstain from hearing the case.
Similarly, court should see if the underlying state law Q is fully dispositive of the case – called independent and adequate state grounds.
Also, there are very few situations where SCOTUS has a mandatory appeal – normally they have discretion.
Mootness
Case must be live throughout the entire proceedings; if the issue is settled at any point, the judicial proceedings should not move forward.
There are exceptions:
-If it is likely
Standing
For standing need 3 things: injury in fact, causation, and redressability.
(1) Injury In Fact: P must have (1) an injury that affects them in a personal/indiv way and that is (2) a concrete injury - not enough to show the law is generally bad, generally violates the constitution or is an abstract harm.
Injury need not be economic, can affect well being.
(2) Causation: need to be able to show that there is real causation, not caused by others.
(3) Redressability: would a favorable ruling eliminate the harm to P? Ex: mothers do not have standing to challenge govts refusal to enforce crim laws against fathers to pay child support, bc it cannot be shown that enforcement of the crim laws would result in fathers providing support to the mothers.
Third party standing allowed IF:
- organizational standing: (1) injury to members (2) relevant to org’s purpose (3) relief does not require participation of members.
- if injured person would have trouble asserting right so 3rd party does instead
- if 3rd party has close relationship to injured person
Eleventh Amendment
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Powers of Exec Branch
Foreign Affairs Powers: Appointment and Removal of Officers: Domestic Powers: Executive Privilege: Youngstown Test for analyzing exec power:
Appointment and Removal of Officers
“With the advice and consent of the Senate,” president can appoint federal judges, ambassadors, and senior officers.
Congress can vest the power to appt inferior officers with the Pres (or with e.g. the judiciary for a Special Prosecutor).
President can remove high level officers at will, Congress can impose limits (eg good cause, civil servants) on removal of inferior officers.
Foreign Affairs Powers of Exec
Broad authority to conduct foreign affairs so the US speaks with one voice; can make a treaty agreement that must then be approved by 2/3 of the Senate; directs military but cannot declare war.
Youngstown Test & Domestic Power
Exec action may be valid under the Take Care clause and the powers that accrue to the Pres in his role as the chief executive of the government. Three prong test for understanding when an executive action is likely to be permissible:
(1) when Pres action is sanctioned expressly by Congress, his powers are at their zenith;
(2) When Congress is silent, Pres is in a twilight zone in which it is unclear;
(3) When Pres acts contrary to Congress, will probably not be permitted.
Executive Privilege and Immunity
Absolute immunity in civil suits for actions taken while in office (but not prior); and privilege is not absolute on confidential executive communications when necessary in a criminal case.
Extent of Congress’s Powers & Necessary and Proper Clause
Congress (and entire fed govt) can only enact legislation based on the express and implied powers given in the Constitution. The necessary and proper clause allows Congress to enact any legislation that facilitates the enactment of laws rooted in its enumerated powers.
Taxation and Spending Powers
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