Con Law Flashcards
Standing
Part of Case and Controversy Requirement
P must show:
1. injury
2. causation and redressability
no generalized grievances- no injury as citizen or taxpayer, unless alleging violation of establsihment clause
third party can assert standing if special relationship with plaintiff or they also have standing they can assert the rights of another whoul would have difficulty asserting their own rights
organizational: if members have standing, injury relates to organizations purpose; and participation of members is not required
Political question Doc
Courts will not review:
Repbulican form of Gov’t
Challenges to president’s conduct of foreign policy
Challenges to impeachment or removal process
Challenges to partisan gerrymandering
The commerce Power
Congress mar regulate:
- chanels of interstate commerce
- instrumentalites of interstate commerce
- economic activites that have a substantial effect on interstate commerce (consider cumulative effect) also, non economic activities that have a substnatial effect
Congress and 14th am, sec 5
Congress may not expand the scope of rights, only prevent or remedy violations that are proportionate and congruent
Instruments of Foreign policy (executive power)
- Treaties- must be ratified by senate
- Executive agreements- effective when signed by pres.
Both subject to constitution and prevail over state law, but only treaties prevail over federal law if they were neacted after the statute
Appointment and Removal Power
President appoints ambassadors, federal judges, and officers
Congress may vest the appointment of interior officers in the president, heads of departents or lower federal courts (but can’t give itself appointment power)
Congress can only limit the removal power where independence form the president is desireable
Impeachment and Removal
Impeachment brings charges (for treason, bribery, or for high crimes and misdemeanors) - requires majority vote in House
Conviction- removal- Requires 2/3 vote in senate
Executive Privilege
President has executive privilege for pres. papers and conversations but must yield to other important gov’t interests
Pardon Power
For Federal Crimes only (not civil or state)
Preemption
Concept of Federalism; supremacy clause makes constitution and federal laws supreme
- express
- implied- fed and state laws mutually exclusive; state law impedes federal object or ; clear intent by congress to preempt.
State Taxation/Regulation of the federal Government
States may not tax or regulate federal government activity because of inter-governmental immunity
Dormant Commerce Clause
State and Local laws are unconstitutional if they place an undue burden on interstate commerce
- does law discriminate against out of staters?
if No, subject to balancing (burden v interests)
if Yes, violates DCC unless necessary to achieve an important government purpose
privileges and Immunities Clause of Article IV
No state may deprive citizens of other states the rights afforded to its own citizens
- law must discriminate against out of staters
- if it impacts the ability to earn a liveliehood or fundamental rights, it violates P&I art IV unless necessary to achieve an important gov’t purpose
State Taxation of Interstate Commerce
- states cannot use their tax systems to help in state business, at the expense of out of state business
- states may only tax activiites if there is a substantial nexus with the state
- state tax must be fairly apportioned
Full faith and Credit
Courts in one state must give full faith and credit to judgments of other state courts as long as
- court had jurisdiction
- judgment was on the merits
- judgment was final
Government Action Requirement for Protection of Individual Liberties
- constitution only applies to gov’t action(not private conduct)
- but, congress may regulate private conduct through staute by 13th am, commerce poewr, but not 14th am sec 5
Exceptions: public funtion exception, entaglement exception (especially race related)
Selective incorporation of Bill of Rights to States
Through DPC of 14th am, all incorporated except
3rd am not to quarter soldiers
5th am right to grand jury indictment
7th am right to jury trial in civil cases
8th am right against excessive fines
Rational Basis Test
Rationally related to a legitimate Government purpose (burden on challenger)
Intermediate Scrutiny
Substantially related to an important government purpose (gov’t has burden)
Strict Scrutiny
Ncecessary to achieve a compelling gov’t interest (burden on govt)
Procedural Due Process
Procedures that must be followed in taking of Life, liberty, or property (notice and hearing)
Balance importance of interest to individual, ability of additional procedures to increase the accuracey of the fact finding, and the gov’t interest (often efficiency and cost)
Economic Liberties and takings
Rational BAsis test used
TAkigns can be possessory or regulatory, depriving substantially all reasonable economic value; must be for public use and just compensation must be paid
Government conditions on development of property must be justified by a benefit that is rougly proportionate to the duty imposed
Contract Clause
No STATE shall impair the obligations of existing contracts
- private contracts; intermediate scrutiny
- gov’t contracts: strict scrutiny
Substantive Due Process
Does the gov’t have adequate reason to take away life, liberty, and prop?
Protects the right to privacy (to marry, procreate, custody of children, keep family together, contraceptives, abortion, homo activity) right to bear arms, to travel, to vote
