Con Law Flashcards
1
Q
Interpretive approaches: original intent vs. living constitution
A
- original intent (conservative): what did the text mean to the people who ratified?
- living constitution (liberal): we might look to deeply rooted traditions in American society or what today’s society needs
2
Q
power to engage in judicial review: marbury v madison
A
- marshall: the Con is “law” & its the duty of the judiciary to declare what the law is. If the con conflicts w/ the law at issue in the case, the law must be declared uncon
- justification: written con is meaningless w/o judicial review; judges must apply law to cases & con is highest law
3
Q
Congressional Authority Over Jdx of Lower and Supreme Court
A
Art. 3 - congress may:
• eliminate or limit jdx of lower fed cts
• change procedural rules governing jdx of the SC in the middle of a case provided jdx is still possible under alt procedures
• eliminate jdx of SC to preclude a ruling on the constitutionality of a particular law (congress controls appellate jdx)
• MAY NOT eliminate SC
4
Q
Requirements of Standing
A
π will be able to show a sufficient stake in the controversy only if she can show an injury in fact – caused by the government – that will be remedied by a decision in her favor
5
Q
Injury
A
- person is injured by a gov action or there is a CLEAR THREAT to cause injury
- particularized
- certainty
- specific (not just theoretical)
6
Q
Injury - Cases (liberal approach)
A
- Mass v EPA: states asking for regulation of greenhouse gas emissions. States have broader scope of possible injuries
- Clapper: must be “certainly impending” & not merely “possible”, but does not have to be actual or imminent
7
Q
Injury - Cases (conservative approach)
A
- Allen: parents sue IRS for providing tax-exempt status to non-desegregated schools. [directness of stigma]
- Lujan: injury must be “actual” or “imminent”
8
Q
Causation
A
- Must be a causal connection between injury & the conduct complained; cannot be attributable to some independent 3rd party not before the court
- sufficiently traceable
- conservative: allen
- liberal: EPA
9
Q
Redressability
A
whether a favorable ruling would eliminate the harm.
10
Q
Redressability - conservative
A
- always an argument that even if the proper/legal steps were taken, it wouldnt have made a difference bc an alt route may have been undertaken (requires more certainty)
- Lujan: required more certainty that they were going revisit the endangered wildlife region
11
Q
Redressability - liberal
A
- per Akins & EPA the prospect and the increased likelihood of redress is sufficient to satisfy redress
- Requires only that it could get redressability
12
Q
prudential factors (standing)
A
- generalized grievances
- third-party standing
- association standing
- tax payer standing
13
Q
Generalized Grievances
A
• A similar interest that is shared by many
• No standing simply to enforce the law; just concerned bystander
• individual trying to enforce law/injury shared by many
*** has to be an appropriation of funds by congress & must be uncon
14
Q
third-party standing
A
claimant must’ve suffered/ presently suffer a direct impairment of his own con rights. π may, however, assert 3rd-party rights where he himself has suffered injury and:
• how bound up are π’s interest w/ those of individuals violated
• difficulty for absent party to bring action
(dont need to satisfy both but consider both)
15
Q
third-party standing - case
A
• Singleton: doctor sues against ban on Medicard funded abortions. Rights of women to get abortions are tied up w/ his right to get paid to perform them. It would be difficult for pregnant women to bring action, given timeline of cases compared to pregnancy
16
Q
Association Standing:
A
• member must have standing
a) action does not involve injuries requiring direct participation of the member, AND
b) action falls w/in the purposes of the org
17
Q
Taxpayer Standing -
General Rule
A
no standing to litigate gov expenditures b/c litigants interest is too remote
18
Q
Taxpayer Standing -
Cases
A
• Flast: Taxpayers sued gov officials to stop using tax money collected to fund a religious school. Standing acceptable to assert a violation of the taxing and spending clause b/c taxing and spending was directly related to supporting a religious org
- congressional expenditure
- exceeds specific con limitation on spending power/expenditure
• Hein: standing not appropriate if tax is not being collected for the express purpose of funding activity at issue
19
Q
Taxpayer Standing - Misc
A
- transferring property is not an expenditure
- arguable that a tax credit is not an expenditure
- the fact that taxes are directed to a smaller group of people might overcome the generalized grievance obstacle
20
Q
Argument for Standing - “any person”
A
there can be an argument that the phrase “any person” can overcome the prudential requirement if congress states explicitly; however the phrase “any person” can never overcome constitutional requirement
21
Q
Ripeness
A
fed ct will not hear case unless π has been harmed or injury is certainly impending. do we have all the info?
considerations:
• hardship it will impart on π; &
• fitness of issues for judicial decision
22
Q
Ripeness - cases
A
- Poe: unsure whether the law criminalizing birth control devices would be enforced since there were no prosecutions in many years
- Abbott: drug manufacturers asked for injunction against printing trade names of drugs on packaging. Ct held that the possibility and uncertainty of enforcement was sufficient; they needed to know before they spent their money
23
Q
Mootness
A
federal court will not hear a case that has become moot; a real, live controversy must exist at all stages of review, not merely when the complaint is filed
24
Q
Mootness - Exceptions
A
- Capable of Repetition yet Evading Review: reasonable expectation that the same party will be subjected to the same action again and would again be unable to resolve the issue because of the short duration
- Voluntary cessation
- Class Action
25
Political Question
1. issues committed by the Constitution to another branch of gov; or
2. those inherently incapable of resolution & enforcement by the judicial process
26
Baker v. Carr Factors
1. textual commitment;
2. judicially discoverable & manageable standards;
3. reasons for exceptional political deference (deference to another branch, policy)
27
Political Question: liberal v conservative arguments
* liberal: if there is a clause in the Con, we should give it an effect; ct should be final judge on controversies
* conservative: con is silent on the matter; there is a lack of judicially discoverable factors; if there is no solution or standard, how can the court adjudicate; leave it up to the other branches of gov & the people
28
Examples (Political Questions):
* Veith: (π brings suit alleging gerrymandering gave Republicans two additional representatives): lack of judicially discoverable standards re: gerrymandering
* Nixon (Judge convicted of crime refuses to resign. Senate begins impeachment & makes committee to hear evidence. Judge brings suit saying he has con right to be tried by senate): Use of the word “sole” in Article 1, Sec 3, shows a textually demonstrable constitutional requirement that the Senate should be the only party to hear and decide impeachment cases
29
Examples (Non-Political Questions)
Powell (Congressman denied seat bc of findings of an investigation. He + constituents sue certain Congress members saying they can only deny seat if con requirements of age, citizenship & residence arent met): Although the 1st factor is supported bc Con allows Congress to judge qualifications of its own members, various factors suggest that Congress can only judge based on those given (age, citizenship, residence). Bc Congress is not relying on those in this case, there is no textually demonstrable con req't, & bc no other factors apply, issue is not a political q
30
Necessary and Proper Clause grants
Congress the power to make all laws necessary & proper (i.e., appropriate) for carrying into execution any power granted to any branch of the federal government
31
McCulloch
“let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and the spirit of the constitution, are constitutional”
- basically created a rational basis test
32
Comstock - ct gives factors to consider when determining if a congressional action is justified by N&P clause
1. grants broad power to enact laws that are “rationally related” & “reasonably adapted” to executing enumerated powers
2. Statute at issue “constitutes a modest addition” related statutes thatve existed for decades
3. reasonably extends longstanding policy
4. properly accounts for state interests, by ending federal gov role “w/ respect to an individual covered by the statute” whenever a state requests
5. narrowly tailored to only address the legitimate fed interest
33
N&P limitation
* Congress cannot adopt a law that is expressly prohibited by another provision of the Constitution
* Obamacare: N&P cannot be used to control inactivity
34
Definition of Commerce:
* not simply buying/selling; incl basically all activity affecting 2 or more states (e.g., civil laws, criminal laws, etc.)
* incl transportation of traffic, regardless of whether a commercial activity is involved
* Any transmission across state lines (e.g., gas, electricity, TV, radio)
35
Three Broad Categories of Commerce
1. Channels of commerce (e.g., hotels, manufacturing, restaurants);
2. Instrumentalities of commerce or persons or things in commerce (e.g., trucks, apples, guns that travel interstate)
3. Activities that have a substantial effect on interstate commerce
36
“Substantial Economic Effect” - commercial or economic activity
* can be local or interstate
* regulation will be upheld if ct can conceive a rational basis on which congress could conclude that the activity in the aggregate substantially affects interstate commerce
37
“Substantial Economic Effect” - cases
* Wickard: control wheat production for home consumption bc in aggregate, it could have an effect on supply & demand of interstate economy (reasoning only applicable to commercial)
* Raich: intrastate production of a commodity that are of a type that end up in interstate commerce (i.e., marijuana) can be regulated via N&P clause
38
“Substantial Economic Effect” - Non Economic or Non Commercial Activity:
* cannot be regulated unless Congress can factually show a substantial economic effect on interstate commerce; aggregate analysis cannot be used
* Sibelius: can only regulate existing commercial activity; cannot require pplp to engage in commercial activity
39
“Substantial Economic Effect” - Non Economic or Non Commercial Activity: cases
Lopez -- gun free zone in schools invalid
| Morrison -- VAWA invalid
40
10th amendment - "powers reserved to states or people"
limits congress' ability to regulate the states
• not delegated to US by con
• not prohibited by con for states
• left to states
41
In order to determine whether congress has abrogated the states sovereign immunity:
(congress wants to apply a general fed statute to important state activities)
Seminole case
1. whether congress has unequivocally expressed intent to abrogate the immunity (must be clear legislative intent)
2. whether congress has acted pursuant to a valid exercise of powers (cannot be under Art 1)
42
Congress cannot compel states/state officers to enforce/enact a federal regulatory scheme. However...
• can pass legislation tht preempts state legislation, unless state legislates in a particular manner
43
Congress may condition the the receipt of state funds subject to the following:
* must be for the “general welfare”
* Conditions for receipt of fed funds must be unambiguous
* Conditions related to a fed interest in a particular national project/program
* Conditions must not violate any other con provisions
* financial inducement does not amount to coercion
44
Printz v. US: fed law required state & local law enforcement to conduct background checks for guns
• Congress may not require State officers to enforce a Fed regulatory program
• theres a difference between prohibition & affirmative action
(argue one or the other)
• deminimis exception: if burden is incidental its requirement has a possibility of being upheld (argue against this)
45
Reno v. Condon
[Federal law enacted to keep states from selling driver license information]: Congress may (probably) pass a law that only regulates states since its trying to regulate state activity, not state officials’ actions or state legislative processes
46
The Taxing and Spending Power: South Dakota v. Dole
congress has a plenary power to spend for the general welfare, & courts will defer substantially to Congressional determinations of what constitutes the public welfare
- can attach strings to regulate unenumerated powers
47
Taxing & Spending Power: N&P implication (Sabri)
[held it could enact laws to prevent fed funds to be distributed based on bribes]: Congress may take appropriate (N&P) steps to ensure funds are spent as intended
48
Congress’s power to tax is as comprehensive as that of the states
* per Obamacare, Congress can now tax inactivity
| * if it appears as a tax, it can be deemed a tax to be Constitutional
49
what is a treaty
a source of Federal authority with Congress able to provide for implementing legislation, or -- in the case of a self-executing treaty -- the treaty itself constituting enforceable law (Holland - migratory birds)
• treaties are "supreme law of the land"
50
self-executing treaty
treaty that by its terms can be immediately applied by the courts and it does not require Congress to do anything (e.g., parties agree that the death penalty is illegal)
51
in the case of a conflict between a federal law and a treaty...
* 2nd in time applies
* Congress will first try to interpret in a manner that avoids contradiction
* consider: did the law go beyond implementing the treaty?
52
14th A rights involved
(1) equal protection of the laws;
(2) life, liberty, and property;
(3) all the rights in the bill of rights/constitution
53
14th A, Sec 5
* cannot enforce on individuals; can only regulate state & local govs
* sec 5 is a magic bullet as it is a powerful source of fed authority. It can get around commerce clause & 10th & 11th A problem
* “Congress shall have the power to enforce, by appropriate legislation the provisions of this article”
54
Commerce: statutory scheme
if Congress establishes a statutory scheme that regulates an interstate market (things in commerce), then N&P clause allows Congress to regulate activities that could be found to impact on its regulatory scheme. The measure only need be appropriate to make the larger regulation effective (Raich)
55
11th A Limits to 14th A, Sec 5
| Hans v. Louisiana
* 11th A is jdx bar by prohibiting a fed court from hearing a private party’s claims against a state gov
* applies to states & entities run by states (no local govs)
56
11th A limits: state sovereign immunity
* states cannot be sued by foreign and domestic citizens
| * Alden v. Maine: Congress cannot authorize suits against state govs in state courts; must have consent
57
commerce: legislative findings
legislative findings of a substantial effect on commerce will be given deference, but are not binding
58
Federal law may be enforced under section 5 of the 14th Amendment only if:
City of Boerne
1. right must be defined by courts
2. only remedial — to correct a (documented?) problem
3. prophylactic measures ok (if an established problem)
4. measures to be evaluated according to whether they are proportionate & congruent responses to the problem
59
United States v. Georgia (Federal ADA law allows for individuals to sue states for monetary damages. State claims sovereign immunity):
Congress may create remedies for state conduct that directly violates the constitution
60
Preemption: Two Underlying Principles
1. purpose of congress is ultimate touchstone
2. start w/ assumption that police powers of states arent to be superseded by fed act unless it was the clear/manifest purpose of congress
61
Types of Preemption
1. express: congress expressly preempts state law on an issue or in a field
2. implied: conflict, field, intereference
62
implied preemption: conflict, field, intereference
1. conflict: conflict between fed & state law makes it impossible for both to coexist
2. field: state law undercuts goals of fed statute/impeded fed objective
3. interference: fed statute is so exhaustive that impliedly congress couldnt have wished to allow state regulation in this area
63
Dormant Commerce Clause
* Implicit in Article 1, Sec 8
* Fed cts have power to strike down any state law that unjustifiably burdens interstate commerce even if Congress has yet to act in the area concerned. • Facially discriminatory laws will be struck down unless it upholds a legit state purpose & the state has chosen the least discriminatory option
* Applies to both discrimination and undue burden issues
64
Does the state law discriminate against interstate commerce?
1. On the face of the statute
2. If there is either:
• Discriminatory intent (look at history of the measure)
• Discriminatory impact - an advantage that the state is reaping in practice at the extent of its neighbors
65
If the law is found to be discriminatory, it will be held unconstitutional unless the state can prove:
1. it upholds a legit local purpose
| 2. state has chosen the least discriminatory alt to accomplish its purpose
66
dormant commerce notes
* Congress has the power to exempt state regulations from dormant commerce clause
* state may act as a market participant & discriminate in its purchasing & sales decisions
* state may subsidize consumers or producers
* state may offer tax incentives and generally undertake measures to make itself at attractive business climate
67
DCC: Not Discriminatory
When a state takes on an economic function itself, at least in a traditional gov activity - & adopts regulations to assist it in offering the service
• Undue burden analysis still applies
68
If the law does not discriminate against non-residents, the court will still consider the following
1. is the law reasonably related to a legit local purpose?
2. does the local interest as given effect by the law outweigh the fed interest in avoiding barriers to interstate commerce?
69
Privileges and Immunities Clause: analysis
1. is there discrimination on the basis of a state resident?
2. Is the out-of-state resident’s interest sufficiently fundamental to the promotion of interstate harmony - involving either a constitutional right receiving unequal protection or an important economic interest?
3. is there a substantial state interest?
4. Is the discrimination substantially related to the state’s objective? - Is there a substantial relationship between out-of-state residents and the evil the statute is aimed at?
70
Privileges and Immunities Clause: notes
1. Only citizens may invoke, no corps
2. no exception for state as market participant
3. congress many not exempt a state from application of clause
4. doesnt entitle non-citizens to recieve services related to state citizenship, such as mechanisms designed to assist in holding public officials accountable
71
Delegations by Congress are permitted so long as
Congress offers “an intelligible principle” to limit the discretion of the individuals exercising the delegated authority (This ensures that the Executive’s conduct is not legislative, but simply pursuant to the instructions of Congress.)
72
The President shall “take care that the laws be faithfully executed.”
Article 2, Section 3 (presidential responsibilities)
Free Exercise Fund (Sarbones-Oxely enforcement employees could only be removed for “good cause” by Security and Exchange officers, who the President could remove only due to “inefficiency, neglect . . . .”): This dual layer of protection interfered with the President’s ability to enforce the law, by keeping employees who enforce the law outside of his control
73
Legislative Veto
* unconstitutional
| * Chadha: Congress may only act legislatively through bicameral process and with presentment to the president
74
Line Item Veto
* unconstitutional
* Clinton v. City of NY: (Congress passed one Item Veto Act, which was used by Prez to strike down two provisions): (possible reading) A delegation that allows immediate, discretional questioning of an act of Congress as part of the presentment process is uncon, though delegations that require the prez to subsequently revise Congressional decisions using parameters est by Congress are unconstitutional
75
Nomination
* Principal officers must be nominated by the President and confirmed by the Senate;
* inferior officers may be named as provided in Article 2, Section 2, Clause 2.
76
The principal officer/ inferior officer distinction depends on
policymaking responsibilities, scope of function and degree of subordination
77
Functional analysis (most applicable in the removal context)
1. does the function involve power grab/excessive encroachment by one branch at expense of another
2. consider if any member of appointing authority is being asked to engage in conduct incongruent w/ any other function they might have
3. degree of encroachment vs functional reasons for mechanism est
78
Removal
* Congressional removal of authority over non-legislative branch officials is limited to impeachment process
* Removal authority is a guide to what branch a particular official has been placed in & hence the authority that may be constitutionally exercised
* ): If congress has not said otherwise, all gov officials w/in Executive may be removed by Prez
79
Although congress may place restrictions on the president’s ability to remove a Principal officer....
it may not further extend those restrictions to eliminate discretionary removal by the Principal officer of an inferior officer
80
adequacy of procedural safeguards are to be judged by weighing:
1. importance to complaining party of private interest affected
2. risk of error given the procedures adopted & likely efficacy of the addition procedures requested by the complying party in reducing the risk of error; and
3. burden on gov if it adopts additional procedures requested - how is the ability of the gov to accomplish its aims affected & what is the additional administrative burden?
81
common exceptions to states sovereign immunity
* waiver/consent of state (you can attempt to incentivize)
* injunctive relief against state officials (provided not an indirect raid on states treasury)
* fed gov can sue state for failing to comply with fed law
* waiver by congress
82
The 5th and 14th Amendments bar federal and state governments, respectively, from denying an individual their life, liberty or property without due process
Government must therefore offer adequate procedural protections before it deprives an individual of a constitutional right or a statutory entitlement
Government benefits that do not involve an expectation that is so established that it may be regarded as an entitlement are not protected
