Con Law

Question 1

Requirement for Cases and Controversies

Answer 1

Ripeness
Advisory opinions - cannot be given by courts
Mootness
Political Question
Standing

Question 2

Standing

Answer 2

Injury
Causation and redressability
No third party standing
No generalized grievances

Question 3

Injury

Answer 3

P has been injured or imminently will be injured
Generally economic loss
For injunctive or declaratory relief, there must be a likelihood of future harm

Question 4

Causation and redressability

Answer 4

P must allege and prove that D caused injury and that a favorable decision is likely to remedy the injury

Question 5

No third party standing

Answer 5

Exception: if there is a close relationship between P and injured third party (ex. Doctor and patient, but not father without legal custody and daughter)
Exception: if third party is unlikely to be able to assert his or her own rights
Exception: An organization may sue for its members if (1) members would have standing to sue, (2) interests are germane to the organization’s purpose, (3) neither the claim nor relief requires participation of individual members

Question 6

No generalized grievances

Answer 6

P must not be suing solely as a citizen or taxpayer interested in having the government follow the law
Exception: Taxpayers have standing to challenge government expenditures pursuant to government statues violating the Establishment Clause
Exception to Exception: Taxpayers lack standing to challenge (1) government grants of property, (2) expenditures from general executive revenue, (3) tax credits

Question 7

Ripeness

Answer 7

Must have genuine immediate threat of harm.
Courts consider: (1) hardship that will be suffered without preenforcement review, and (2) fitness of the issues and the record for judicial review (eg. pure question of law?)

Question 8

Mootness

Answer 8

Moot unless actual controversy exists at all stages of review
Exception: Wrongs capable of repetition but evading review (eg. issues of abortion, Roe v. Wade)
Exception: If D voluntarily halts the conduct, but is legally free to resume it at any time
Exception: Class action suits as long as one member of the class still has a case

Question 9

Political Question Doctrine

Answer 9

Federal courts will not adjudicate issues committed to another branch of government. Including:

(1) Republican form of government clause - Causes regarding republican forms of government where voters elect people who then create the laws
(2) Challenges to the President’s conduct of foreign policy
(3) Challenges to the impeachment and removal process
(4) Challenges to partisan gerrymandering - Where election districts are drawn up

Watch out for mentions of foreign affairs.

Question 10

Supreme Court Will Review

Answer 10

(1) All cases from state courts by writ of certiorari - must not be an independent and adequate state law ground of decision. The reverseal of the federal law must change the result of the case.
(2) All cases from U.S. Court of appeals by writ of certiorari
(3) Appeals from decisions of three-judge federal district courts
(4) Suits between state governments (original and exclusive jurisdiction)

Generally will only hear final judgments

Question 11

Federal courts (and state courts) may not hear suits against state governments

Answer 11

Except:

(1) Waiver by the State
(2) States sued pursuant to section 5 of the 14th Amendment
(3) Federal government may sue state governments
(4) Bankruptcy Proceedings
(5) Suits against state officers for injunctive relief, for money damages paid out of their own pockets (but not if the state treasury will be paying retroactive damages)

Question 12

Principle of Sovereign Immunity

Answer 12

Eleventh Amendment bars suits against states in federal court. Sovereign immunity bars suits against states in state courts or federal agencies.

Question 13

Abstention

Answer 13

Federal courts may not enjoin pending state court proceedings

Question 14

Federal Police Power

Answer 14

Only if:
Military
Indian reservation
Land and territories, Federal
D.C.

Question 15

Necessary and Proper Clause/Power

Answer 15

Congress can use any means not prohibited by the Constitution to carry out its authority

Question 16

Congress’s authority to act

Answer 16

Express or Implied Congressional Power
Necessary and Proper Clause/Power
Taxing/Spending Power
Commerce Power

Question 17

Taxing/Spending Power

Answer 17

Congress may tax and spend for the general welfare. Taxes must be uniform and capitation must be proportional to the census

Question 18

Commerce Power

Answer 18

1. Congress may regulate channels of interstate commerce
2. Congress may regulation instrumentalities of interstate commerce and persons or things in interstate commerce
3. Congress may regulate economic activities that have a substantial effect on interstate commerce in the aggregate. If non-economic, then a substantial effect cannot be based on cumulative impact. If not commercial activity, then Congress must make a finding of substantial effect first.

Question 19

Tenth Amendment

Answer 19

Limit on Congressional powers. Usually the WRONG answer.

BUT NOTE: Congress may not commandeer a state to enact or enforce a federal regulatory program. If this happens, then Tenth Amendment is the correct answer.

Congress CAN induce state government action by putting restrictions or conditions on grants as long as they are expressly stated, relate to the purpose of the spending program, and are not unduly coercive.

Question 20

Section 5 of the Fourteenth Amendment

Answer 20

Congress may not create new rights or expand the scope of rights.

Question 21

Delegation of powers

Answer 21

No limits on Congress’ ability to delegate legislative power.
NEVER pick “Unconstitutional as an excess of delegation power”
BUT Congress may not delegate executive power to itself or its officers

Question 22

Legislative Vetos

Answer 22

Congress attempts to overturn a presidential veto without bicameralism AND presentment.
UNCONSTITUTIONAL

Question 23

Line-Item Vetos

Answer 23

President attempts to sign some of a bill and veto some of a bill.
UNCONSTITUTIONAL

Question 24

Commercial Speech Test

Answer 24

1. Is it concerning a lawful activity and is not misleading or fraudulent?
2. If yes, does it serve a substantial government interest?
3. Does it directly advance that interest?
4. Is it narrowly tailored to achieve that interest?

Question 25

Associational Rights Test (First Amendment)

Answer 25

Groups are generally held to have a right to limit their memberships as they see fit. No clear test for determining whether the freedom of association has been violated.

Question 26

Public Forum

Answer 26

Government properties historically open for speech activities (sidewalks and public parks)

Question 27

Designated public forums

Answer 27

Government properties not historically open for speech activities but which the government has thrown open for such activities generally

Question 28

Limited public forums

Answer 28

Government properties not historically open for speech but which the government has opened for a particular purpose

Question 29

Nonpublic forums

Answer 29

Government properties not historically open for speech activities and not held open for speech activities in any way

Question 30

First Amendment Freedom of Speech

Answer 30

Guaranteed by the First Amendment, but the government may regulate if it is necessary to achieve a compelling state interest (narrow).
However, Government may regulate the time, place, and manner of the speech (standard depending on type of forum).

Question 31

Public and designated public forum test

Answer 31

Time, place, and manner regulations must:

1. Be content neutral
2. Be narrowly tailored to achieve an important government interest
3. Leave open alternative channels of communication

Question 32

Limited public and nonpublic forum test

Answer 32

Time, place, and manner regulations must be:

1. Viewpoint neutral
2. Reasonably related to a legitimate government purpose