Con Law Flashcards
Federal Court System:
Scope of Federal Judicial Power:
Article III, § 2, limits the jurisdiction of fed’l courts to:
- Law Based Federal Jurisdiction: Constitution or Federal Law
- Party Based Federal Jurisdiction:
- Controversies where U.S. a party
- Controversies b/w 2+ states
- Cases b/w a state & citizens of another states
- Cases b/w citizens of different states [diversity of citizenship]
- Cases involving foreign diplomats
Federal Court System:
11th Amendment:
private individuals can’t sue a state in any court for money damages w/o state’s consent [BARRED BY STATE SOVEREIGN IMMUNITY]
- Only individuals cannot, other states or Feds can sue
- Only states, not cities or counties
- Only money damages, not injunctive relief
- State can waive privilege, if it is clearly express
- Congress can negate if enforcing 13, 14 or 15 amendment
Other Limitations on Jurisdiction of Federal Courts: Art. 3, § 2, limits jurisdiction of fed’l courts to “___________.”
“cases & controversies.” [RAMPS]
Mootness?
further legal proceedings have no effect or events have placed it beyond the reach of the law [too late?]
- Exception: CAPABLE OF REPETITION, YET EVADING REVIEW, voluntary cessation or class action suits
- NO ADVISORY OPINIONS: opinion issued by a court that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law.
Ripeness?
the readiness of a case for litigation [too early?]
- TIP: If answer is “ripeness,” then question will most likely deal with declaratory judgment. [jmt of court in civil that declares rights/duties of parties in a dispute, which is legally binding, but DOES NOT ORDER ANY ACTION by a party. [preventive adjudication]]
Abstention?
deference to state courts
- Fed’l court may abstain if the meaning of a state law is unclear.
- If state court proceeding is going on, fed’l court will abstain from hearing same matter.
Standing?
- injury in fact: π suffered direct & personal injury, actual or imminent;
- causation: injury was actually caused by ∆; AND
- redressability: the court can redress the harm caused
Taxpayer Standing?
gov’t allocated funds to support a violation of Establishment of Religion Clause found in 1st Amendment.
3rd Parties Standing?
one raising injuries of another:
- Close relationship b/w injured & 3rd; AND
- Some hindrance/hardship affecting 3rd from protecting her own interest
Organization Standing?
association suing on behalf of its members:
- Some direct injury to member(s);
- Injury relates to association’s purposes; AND
- Nature of injury & relief sought won’t need individual participation (no personal relief sought)
Political Questions?
Fed’l courts cannot hear cases involving political questions. PQ are matter assigned to another branch of gov’t incapable of a judicial answer. 6 factors:
- Constitution suggests ultimate decision making authority is granted to another branch
- Required question is political, rather than legal in character
- Lack of judicially discoverable & manageable standards for resolving it
- Impossibility of a court’s undertaking independent resolution w/o expressing lack of respect due coordinate branches of government
- Unusual need for unquestioning adherence to a political decision already made
- Potentiality of embarrassment from multifarious pronouncements by various departments on one question
Organization of Courts in Federal System:
Adequate & Independent State Grounds?
S.C. cannot take an appeal from a state court of law resort if state decision supported on state law grounds
- EXCEPTION: If state provision analogous to fed’l provision, then not adequate & independent state grounds
U.S. Supreme Court Jurisdiction?
- Original Jurisdiction – Party based: (1) Ambassadors; (b) ministers & consuls; & (c) at least one state is a party
-
Appellate jurisdiction exists where Constitution or a federal law are at issue.
- SC reached through APPEAL or WRIT OF CERTIORARI
-
Congress’s Power Over the Courts:
- Lower Fed’l Courts: Congress can do what it would like Supreme Court: Nothing, really [other than change the laws]
- Congress Cannot: take a case out of SC appellate jurisdiction & make it original
Constitutionality of a Fed’l law? State law?
- Constitutionality of a Fed’l law: Brought under an ENUMERATED POWER; Doesn’t violate constitutional right
- Constitutionality of a State law: Doesn’t violate constitutional right
TIP: Be weary of answer that say the Fed’l police power OR Congress’ power to promote general welfare. These powers don’t exist unless it’s the District of Columbia or another Fed’l territory.
Powers of Congress:
Procedure to pass a law?
- Congress passes a bill w/ a majority in both houses.
- President then signs bill or vetoes it.
- (*) If \ vetoed, Congress can override veto if it gets 2/3 majority vote in each house.
Name the 3 sources of power to legislate for Congress:
- Enumerated powers [art. 1 § 8]
- Enabling Clauses of the 13th, 14th, and 15th Amendments: Congress may enforce these amendments by appropriate legislations
- Necessary & Proper Clause: provides Congress with power to create laws necessary & proper to carrying into affect its other powers
TIP: N&P Clause as an answer by itself will usually be incorrect. If it’s the N&P Clause in conjunction w/ another power, it is more likely to be a right answer.
Powers of Congress:
Commerce Power?
- Channels of interstate commerce [roads, waterways, any other means]
- Instrumentality of Interstate Commerce [vehicles]
- Substantial Effect: any activity w/ substantial effect on interstate commerce
- Cumulative Effect: Congress can use commerce power to regulate an activity that by itself would have not have substantial effect on commerce, but when cumulated would substantially effect commerce
- Limitations: Cannot use Substantial Effect to regulate interstate non-commercial activity [violent crime, gun control]
Powers of Congress:
Taxing Power?
Congress has power to impose & collect taxes in order to pay debts & SPEND FOR GENERAL WELFARE. “Tax” must be 1/3:
- Objective – tax raises revenue
- Subjective – tax intended to raise revenue
- Regulatory – Congress have power to regulate activity
Powers of Congress:
Spending Power?
Congress has power to spend for the general welfare.
Congress may place a condition on receipt of federal funds by a state if:
- Spending serves general welfare
- Unambiguous
- Condition relates to the fed’l program
- Cannot require states to do something unconstitutional
- Money cannot be so great as to cross line from suggestion to coercion
TIP: Don’t say something is unconstitutional b/c it is not for the general welfare
Powers of Congress:
War and Defense Powers?
- Declare war;
- Raise support the army;
- Provide & maintain a Navy;
- Organize, arm, discipline & call forth a militia
* Authority to initiate measures necessary to provide for nat’l defense in peacetime & wartime. During wartime, Congress has power to: (1) Draft selective services systems; (2) Control prices & wages during wartime; & (3) Confine citizens to designated citizens during wartime
* Can establish military courts to try enemy combatants for war crimes or its soldiers. TIP: What rights does a terrorist have w/ respect to detention? Both U.S. citizens and non-U.S. citizens w/in U.S. or territories entitled to Due Process rights.
Powers of Congress:
Power of Eminent Domain?
Property Power?
Bankruptcy Power?
Postal Power?
- Power of Eminent Domain – take private property for public purpose, but has to pay just compensation
- Property Power – regulate & dispose of federal property [TIP: If dealing w/ a fed’l territory and not a state, Congress has a general legislative power & can pass any law it would like.]
- Bankruptcy Power - Congress has the power “to establish uniform Laws on the subject of Bankruptcies throughout the U.S.
- Postal Power – power to establish Post Office
Powers of Congress:
Admiralty and Maritime Power?
Copyright and Patent Power?
Investigatory Power?
- Admiralty and Maritime Power - Necessary & Proper Clause gives Congress complete & plenary power to fix & determine maritime laws throughout country.
- Copyright and Patent Power - Congress may “promote the Progress of Science & useful Arts, by securing for limited Times to Authors & Inventors the exclusive Right to their respective Writings and Discoveries”.
- Investigatory Power - extends to any matter related to its legitimate law making functions
- Things necessary to facilitate an investigation.
- Congress cannot: override individuals’ Constitutional rights
Powers of Congress:
Speech and Debate Clause
[privilege] – members of Congress cannot be punished/prosecuted for anything they say during debate on floor
Powers of Congress:
RECONSTRUCTION AMENDMENTS:
Congress has the power to enforce:
- 13th: bans slavery, by states & individuals
- 14th: states can’t violate Due P., Eq. Prot. & Privileges & Immunities of citizens
- 15th: states can’t discriminate on grounds of race in reference to voting
Powers of Congress:
RECONSTRUCTION AMENDMENTS:
Valid enforcement Reconstruction Amendments:
- Who is Congress regulating? [If individuals has to be 13th–slavery]
- Justification of 13-15. Congress must demonstrate a problem.
- Remedy cannot go far beyond the amendments purpose. [must be CONGRUENT & PROPORTIONAL]
Valid 14th/15th amend. legislation can overcome sovereign immunity.
Executive Power:
Chief Executive has the following powers:
- Enforcement of Laws
- Appointment Power
- Removal Power
- Veto Power
- Pardon Power
- Executive Privilege
Executive Power:
Enforcement of Laws?
Appointment Power?
- Enforcement of Laws, but he cannot make them.
- Appointment Power of high level officials such as Ambassadors and Cabinet members w/ advice & consent of Senate.
Executive Power:
Removal Power?
- Executive officials: can remove w/o cause
- Executive officials having fixed terms: not until term is up, Unless good cause exists
- Federal judges: cannot remove even w/ cause, unless impeached
- Exception: Congress cannot require President to get their approval for a removal, Unless, Congress hires a special prosecutor to investigate the President
Executive Power:
Veto Power?
Process?
the power of the President to unilaterally stop an official action, especially the enactment of legislation
Veto Process:
- If President doesn’t act for a period of 10 days bill will become law.
- Congressional Override: If a bill is vetoed, then Congress may pass it w/ a 2/3 majority vote in both houses.
Executive Power:
Pocket Veto?
if >10 days are left in a Congressional session
when President receives Bill & he doesn’t sign it,
then it will expire before it becomes law
Executive Power:
Line-item veto?
Law passed by Congress, & allows President to veto part of it & sign the rest.
Unconstitutional
TIP: BICAMERALISM & PRESENTMENT are only ways a bill can become a law.
Executive Power:
Pardon Power?
President may grant pardons.
Limitations of Pardon power:
- Only issue a pardon for Fed’l crime.
- Pardon cannot undue an impeachment.
Executive Power:
Executive Privilege?
- Absolute privilege: refuse to disclose info dealing w/ nat’l security
- Presumptive privilege: all confidential communication b/w President & his advisors
Commander in Chief of Military:
Military Powers:
If Congress doesn’t declare war, President’s powers are LIMITED TO:
- Power to deploy Military forces response to surprise attack on U.S.
- Make tactical [battlefield] decisions
Executive Power:
International Affairs?
Treaty Power
Executive Agreements
Executive Power:
International Affairs:
TREATY POWER?
has power to make treaties w/ consent of Senate, but they must ratify treaty by a 2/3 majority vote before it becomes effective
- Treaty has same status as Fed’l law once effective; therefore, it preempts state laws & prior Fed’l statutes
Executive Power:
International Affairs:
EXECUTIVE AGREEMENTS?
President has power to enter into executive agreements w/ foreign nations, which do not require Senate ratification.
- Will NOT preempt contrary Fed’l law, but it will prevail over state law
Interbranch Checks Upon Exercise of Federal Power:
Presidential Limits on Congress?
Judicial Limits on Congress and the President?
- Veto OR Pardon power
- hold a law Unconstitutional
Interbranch Checks Upon Exercise of Federal Power:
Judicial Limits on Congress and the President?
Interbranch Checks Upon Exercise of Federal Power:
Congressional Limits on Executive?
if acting w/in its enumerated powers it can impede Presidential actions
- Impeachment Power
- Appropriations Power
Interbranch Checks Upon Exercise of Federal Power:
Congressional Limits on Executive:
Impeachment Power?
Congress can remove President, federal judges & any federal official from office.
- House of Representatives: has sole power to impeach [indict]
- Senate: conducts actual impeachment trial & requires 2/3 majority vote
- Impeachment worthy: (1) Treason, (2) Bribery & (3) High crimes & misdemeanors
Interbranch Checks Upon Exercise of Federal Power:
Congressional Limits on Executive:
Appropriations Power?
Where Congress by legislative act explicitly directs President to spend appropriated money, President has no power to impound (i.e., refuse to spend or delay spending) the authorized funds.
RELATIONSHIP OF NATION & STATES IN FEDERAL SYSTEM:
States’ Police Powers:
the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants
RELATIONSHIP OF NATION & STATES IN FEDERAL SYSTEM:
States’ Police Powers:
Constitution limits state’s police powers by:
- EXCLUSIVE FEDERAL POWER: Only Fed’l gov’t can do
- INDIVIDUAL RIGHTS: cannot individual Constitutional Right
- PREEMPTION: Fed’l law in an area preempts state law in said area
Intergovernmental Immunities:
Immunity of Fed’l Gov’t?
- SOVEREIGN IMMUNITY: Fed’ gov’t has sovereign immunity
- SUPREMACY CLAUSE: Fed’l law supreme over state law
- TAXATION OF FEDERAL GOVERNMENT BY A STATE: fed’l gov’t, its agencies & instrumentalities are immune from state taxation
Intergovernmental Immunities:
Immunity of State Governments:
11th Amendment?
11th Amendment limits power of federal courts to hear lawsuits against state governments brought by citizens of another state/foreign country; Congress can only create a private CoA against a state under 13-15 amend
Intergovernmental Immunities:
Immunity of State Governments:
IMMUNITY FROM FED’L TAXATION if tax applied to either:
- Activities unique to state government
- Essential gov’t functions
Intergovernmental Immunities:
Immunity of State Governments:
ANTI-COMMANDEERING Doctrine:
Fed’l gov’t cannot force state’s to act in their sovereign capacity [e.g., pass or enforce laws]
- 10th Amendment: powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
- TIP: It is not commandeering to forbid the states from doing something. This is even true if the prohibition extends to state sovereign functions.
- TIP: Spending clause can often be used here instead to achieve the same result. Must be relation b/w condition placed on state & Congressional purpose
Authority Reserved for The States:
Dormant Commerce Clause?
Exceptions?
state cannot discriminate against out of state economic actors [applicable to state taxes]
Exceptions DCC:
- Congressional authorization
- Market-Participant – acting like private person in market, then not subject to DCC scrutiny
Authority Reserved for The States:
Dormant Commerce Clause:
State law facially discriminatory b/w in-state & out-of-state goods or economic actors, state must show:
- Regulation serves a Compelling Interest
- Necessary
Authority Reserved for The States:
Dormant Commerce Clause:
State law incidentally burdens interstate commerce, state must:
- Regulation serves an important state interest
- Burden proportional to state interest
State Action?
Exceptions?
bill of rights only applies only to gov’ts, not individuals
- Public function theory: private actor CARRIES ON ACTIVITIES TRADITIONALLY PERFORMED by the gov’t
- Significant state involvement theory: private actor’s action is CLOSELY ENCOURAGED & SUPPORTED by the state [closely entangled]
- 13th Amendment: does not have a state action requirement
Due Process Clause?
- 14th Amend. DP Clause allows Bill of Rights to be invoked against states; DP Clause of 5th Amend. applies directly to fed’l gov’t.
- Both offer Procedural & Substantive protection, that can be asserted by all people or corporations.
TIP: Privileges & Immunities Clause of 14th has frequently been wrong answer. Almost all P&Is are protected by Commerce Clause, Due Process Clause, or Equal Protection Clause. However, P&I Clause is an alternative to an Equal Protection Clause protection w/ regard to the RIGHT TO TRAVEL.
Procedural Due Process?
Gov’t cannot deprive person/corp of life, liberty or property
w/o certain procedural steps
-
NOTICE; AND
- Importance of interest protected;
- Risk of gov’t mistakenly taking away interest; &
- Importance of gov’t interest in streamlining process
- HEARING
- Life: physical life
- Liberty: freedom from restraint
- Property - person’s or entity’s expected rights/interest in something [E.g., Public education, term employment, welfare or driver’s license, but not at will public employment]
Substantive Due Process?
a principle protecting fundamental rights from government unnecessary and arbitrary government interference.
gov’t must prove its actions were necessary
to reach a compelling governmental interest.
Substantive Due Process:
List Fundamental Rights:
- Privacy rights - Marriage, Contraceptives, Procreation, and abortion
- Family Relations – gov’t cannot prohibit members of an extended family from living in a single household, but banning unrelated persons okay.
- Sexual Orientation - cannot criminalize homosexual sodomy, Not a fundamental right, so only rational basis; states don’t have to recognize same sex marriages of other states
- Private Education - cannot prohibit parents from educating children outside public school system
- Obscene Material – right to possess w/in privacy of home, Not buy or sell; Exception: CHILD PORNOGRAPHY
- Right to Die – right to refuse medical procedures
- Right to Travel (not really a privacy right)
- Right to Vote (not really privacy right/scrutiny depends)
Substantive Due Process:
Fundamental Rights:
Abortion?
protected privacy interest in choosing to have an abortion before fetus is viable; therefore, any regulation on pre-viability abortion is unconstitutional if it imposes an UNDUE BURDEN on a woman’s right to choose an abortion.
- Ex. Undue burden: Total ban; Spousal consent/notification req.; parental permission req. for minors w/o judicial bypass option, but NOT parental permission for minors w/ judicial bypass; 24 hour waiting period; refusing public funds for abortions; & prohibition on unsafe abortion methods
- Even subsequent to viability cannot restrict an abortion when necessary to protect life or health of the mother
Substantive Due Process:
Fundamental Rights:
Right to Travel?
(not really a privacy right)
- 14th amend P&I Clause allows every citizen to TRAVEL FREELY FROM STATE TO STATE & TO SET UP RESIDENCY IN A NEW STATE.
- Right to international travel under due process clause, liberty interest, but gov’t can restrict to certain countries in name of nat’l security
Substantive Due Process:
Fundamental Rights:
Right to Vote (not really privacy right/scrutiny depends)?
- Right to privacy comes from 1st amend Right of Association & 14th. However, more amendments regarding the right to vote:
- 15th: states cannot discriminate w/ respect to race right to vote
- 19th: states cannot discriminate w/ respect to sex & right to vote
- 24th: there can be no poll taxes to fed’l election, nor can states
- 26th: states cannot discriminate w/ respect to age[18+] right to vote
- Constitutional Restrictions: Reasonable residency requirements; Reasonable voter registration requirements; Reasonable of the time & manner of casting votes; & Denying felons the right to vote. Unconstitutional Restrictions: States cant Impose a poll tax; can’t requires voters in school board elections be parents or own property; & can’t count votes using standard that lack uniformity or are too vague to vague
- Presidential Elections: not chosen by popular vote, but electoral college which is chosen by the popular vote, so the people who vote for a presidential election must be the same people who vote the state legislators [electoral college]
Takings Clause?
5th amend provides that fed’l gov’t cannot take private property for public use w/o just compensation.
- Can’t stop a taking, but can fight for just compensation.
- Applies to states through 14th.
- SC interpreted “public use” language of Takings Clause to mean “PUBLIC PURPOSE.” Thus, only something extraordinarily abusive won’t apply.
- Direct government appropriation (gov’t actually takes property) vs. Regulatory taking
