Con Law Flashcards
Requirement for Cases and Controversies
Ripeness Advisory opinions - cannot be given by courts Mootness Political Question Standing
Standing
Injury
Causation and redressability
No third party standing
No generalized grievances
Injury
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
Causation and redressability
P must allege and prove that D caused injury and that a favorable decision is likely to remedy the injury
No third party standing
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
No generalized grievances
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
Ripeness
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?)
Mootness
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
Political Question Doctrine
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.
Supreme Court Will Review
(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
Federal courts (and state courts) may not hear suits against state governments
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)
Principle of Sovereign Immunity
Eleventh Amendment bars suits against states in federal court. Sovereign immunity bars suits against states in state courts or federal agencies.
Abstention
Federal courts may not enjoin pending state court proceedings
Federal Police Power
Only if: Military Indian reservation Land and territories, Federal D.C.
Necessary and Proper Clause/Power
Congress can use any means not prohibited by the Constitution to carry out its authority
Congress’s authority to act
Express or Implied Congressional Power
Necessary and Proper Clause/Power
Taxing/Spending Power
Commerce Power
Taxing/Spending Power
Congress may tax and spend for the general welfare. Taxes must be uniform and capitation must be proportional to the census
Commerce Power
- Congress may regulate channels of interstate commerce
- Congress may regulation instrumentalities of interstate commerce and persons or things in interstate commerce
- 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.
Tenth Amendment
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.
Section 5 of the Fourteenth Amendment
Congress may not create new rights or expand the scope of rights.
Delegation of powers
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
Legislative Vetos
Congress attempts to overturn a presidential veto without bicameralism AND presentment.
UNCONSTITUTIONAL
Line-Item Vetos
President attempts to sign some of a bill and veto some of a bill.
UNCONSTITUTIONAL
Commercial Speech Test
- Is it concerning a lawful activity and is not misleading or fraudulent?
- If yes, does it serve a substantial government interest?
- Does it directly advance that interest?
- Is it narrowly tailored to achieve that interest?
