Con Law Flashcards
Judicial Power
- Source: Art. III
- Limit: actual cases and controversies
- No advisory opinions (where actual dispute or legally binding effect on parties is lacking)
Ripeness
- Federal courts may only decide controversies that are ripe for judicial review
- Pre-enforcement review of laws (declaratory judgment actions) are generally NOT ripe… unless
(1) substantial hardship in absence of review, and
(2) issues and record are fit for review
Mootness
- Federal courts may only decide live controversies (i.e., P suffers ongoing injury)
- Controversy is “live” if:
(1) in suit for declaratory and injunctive relief, challenged law/conduct continues to injure; or
(2) in suit for damages, P was not made whole (no damages or settlement) - Exceptions: though injury has passed, NOT moot if:
(1) injury is capable of repetition, yet evades review because of inherently limited duration
(2) D voluntarily stops challenged activity but may restart at will, or
(3) in class actions, 1 P suffers ongoing injury
Standing: Injury
- almost any harm counts: physical, economic, environmental, loss of constitutional or statutory rights
- but NOT ideological objections or generalized grievances as citizen or taxpayer
- injury must have occurred or will imminently occur
- injunctive or declaratory relief requires showing of likelihood of future harm
- Legislators may challenge acts that injure them personally, rather than the legislature generally (i.e., legislators challenge tie-breaking vote of Lt. Gov. that nullified contrary votes)
- P must be personally injured–no TP standing UNLESS:
(i) close relationship (i.e., doctor challenges abortion law raising claim of patient)
(ii) organizations on behalf of members (i.e., NAACP challenging law compelling disclosure of group membership raising association rights of members), or
(iii) free speech overbreadth (party whose speech can be censored sues on behalf of those whose speech cannot) (i.e., publisher of obscene website challenging internet indecency ban on behalf of those with non-obscene websites)… does NOT apply to commercial speech
Standing: Causation and Redressability
- Causation: P must show injury is “fairly traceable to the D” (beware of too many links in the chain)
- Redressability: P must show that favorable court decision can remedy the harm
Political Question Doctrine
- Federal courts will NOT decide political questions–questions that are
(1) committed by the Constitution to the political branches of government, or
(2) incapable of, or inappropriate for, judicial resolution
Examples:
- Challenges under Guarantee Clause
- Foreign affairs
- Impeachment process
- Partisan Gerrymandering
- Qualifications of members of Congress
- Seating of delegates at national political convention
Sovereign Immunity (11th Am./Federalism)
- States generally can’t be sued
Exceptions:
- Waiver of sovereign immunity
- When the P is another states or the feds
- Bankruptcy proceedings
- Clear abrogation by Congress under 14th Am. powers to prevent discrimination (i.e., you sue state under federal anti-discrimination law for firing you on racial grounds)
State officers, government, police and mayor CAN be sued for (1) injunctive relief, or (2) money damages from their own pockets
Local governments CAN be sued for (1) any $ damages or (2) injunctive relief
Abstention
- Discretionary, not mandatory
- Federal courts generally decline to decide a federal constitutional claim that turns on an unsettled question of state law (i.e., EP claim that depends on meaning of ambiguous new state immigration law)
- Federal courts generally may not enjoin pending state judicial or administrative proceedings (i.e., seeking to enjoin criminal trial allegedly in violation of 1st Am.)
SCOTUS Judicial Review
- Final Judgment Rule: SCOTUS only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in specially statutory situations) a 3-judge district court
- Independent and Adequate State Grounds: SCOTUS will not review a federal question if the state court decision rests on an independent and adequate state law ground (exists if outcome would be the same regardless of how the federal question is decided)
Legislative Power
- Source: Art. I
- Limited to enumerated powers (Congress has no general police power to pass laws)
Necessary and Proper Clause
- NOT a basis of legislative power
- Allows Congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution
Legislative Power: Enumerated Powers
Examples: citizenship, bankruptcy, federal property, patents and copyright, post offices, coining money, territories and D.C., declaring war, raising and supporting armies, providing and maintaining navy
Legislative Power: Taxing and Spending Clause
- Congress may tax and spend to provide for the general welfare… includes any public purpose not prohibited by Constitution, even if not within an enumerated power
- “Strings” must relate to purpose of spending and not violate Constitution (i.e., cannot condition school spending on highway speed limits)
- “Strings” cannot be unduly coercive (i.e., withholding current Medicaid funding (10% of state budgets) if state refuses to participate in new Medicaid expansion under health care law)
Legislative Power: Commerce Power
Congress may regulate commerce with
(1) foreign nations,
(2) Indian tribes, and
(3) among the states–broadest and most common basis for regulation:
- channels of interstate commerce (i.e. highways, waterways, phone lines, Internet)
- instrumentalities of interstate commerce (planes, trains, cars, persons in interstate commerce)
- substantial effect on interstate commerce in the aggregate (even purely local activities like growing wheat in backyard for home consumption, discrimination at hotels/restaurants, etc.)
Limits: CANNOT
- regulate non-economic activity in area traditionally regulated by states (i.e, domestic violence against women)
- compel participation in commerce (even if lack of participation substantially affects interstate commerce)
Legislative Power: Delegation of Power
- To agencies: as long as some intelligible principle guides exercise of delegated power (i.e., EPA authority to regulate air pollutants that endanger public health/welfare)
- To POTUS: NO line item veto! (violates bicameralism and presentment requirements)
- To Congress: NO legislative veto to void duly enacted laws without bicameralism and presentment
Speech or Debate Clause
- Members of Congress enjoy immunity from civil and criminal liability for legislative acts
- e.g., speeches on the floor (even if slander!), voting, committee reports
- NOT immune: bribes, tweets, town halls, speeches and publications outside of Congress
Executive Power: Domestic Powers
- Source: Art. II
- Enforcement: POTUS has power (and duty) to execute laws
Appointment:
- Ambassadors, federal judges, and officers of the US (e.g., cabinet secretaries) are (1) appointed by POTUS, (2) Senate gives advice and consent by majority vote, (3) recess appointments are permissible for vacancies arising before or during Senates recesses of at least 10 days, and valid until end of next Senate session
- Inferior officers: Congress may vest appointment power in POTUS, department heads, or judiciary (NOT Congress)
Removal
- POTUS may remove high-level executive officers at-will
- Congress may limit presidential removal of other executive officials to “good cause”
- Congress may NOT remove executive officials except through the impeachment process
Pardon
- POTUS may pardon anyone accused (prospective) or convicted (retroactive) of a federal crime
- Does not cover civil liability
- Exception: NO power to pardon crimes underlying impeachment by House of Rep.
Executive Power: Foreign Powers
War: Congress alone has power to declare war
- POTUS as commander-in-chief has broad discretion to deploy troops internationally to protect American lives and property
- Challenges are non-justiciable as political questions
- Congress checks through power of the purse
Treaties
- POTUS negotiates
- 2/3 Senate approval
- trumps existing and future state laws
- trumps existing (but not future) federal law
Executive Agreements
- POTUS negotiates
- NO senate involvement
- trumps existing and future state laws
- Federal law will ALWAYS trump
Executive Power: Impeachment
- Congress may impeach POTUS, VP, federal judges, and all officers of the US for treason, bribery, or other high crimes and misdemeanors
Process
- House passes articles of impeachment by majority vote
- Senate convicts by 2/3 vote
- Removal requires BOTH
Executive Power: Presidential Immunity and Executive Privilege
- Absolute immunity from civil damages for any actions arguably within official responsibilities
- NO immunity from private suits (even while in office) for conduct prior to taking office
- Executive privilege protects confidentiality of presidential communications… but may yield if it’s outweighed by other important government interests (i.e., need for evidence in criminal trial… Watergate)
Inherent (Implied) Presidential Powers
- Highest where authorized by Congress
- Lowest where prohibited by Congress
- Twilight zone where neither!
Federalism: 10th Am., General Police Powers, and Anti-Commandeering Principle
10th Am.: powers not granted to US, or prohibited to the states, are reserved to the stats or the people
- General police powers: reserved to states
Anti-Commandeering Principle: Congress cannot compel states to enact or administer federal programs (e.g., Congress cannot require states to enact environmental regs, or require local law enforcement to conduct background checks for federal handgun law)
Federalism: Supremacy and Preemption
- Supremacy Clause of Art. VI makes federal law preempt inconsistent state and local laws
- Express preemption: when Congress says so
- Implied Preemption:
(1) conflict: impossible to follow both federal and state law (e.g., federal law sets max auto emissions at 50 PPB, and state law sets max at 60 PPB); or state law impedes federal law (e.g., federal law encourages reporting of employment discrimination companies to federal agency, while state law denies unemployment benefits to those who do)
(2) extensive federal regulation indicates congressional intent to “occupy the field” (e.g., Congress extensively regulates immigration, then border state imposes additional requirements for entry)
