Con Law Flashcards
What are the Justiciability doctrines?
Advisory opinions, standing, mootness, ripeness, and political question
Standing
Need to have 3 things
1: Injury in Fact
- A plaintiff Must show a legally protected interest which is concrete and particularized and actual or imminent. (no speculative)
2: Causation
- Injury must be fairly traceable to defendants conduct
3: Redressability
- The injury to the plaintiff that is caused by the defendant must likely be remedied if the court rules in favor of the plaintiff.
Prudential Standing
- Three major rules of prudential standing
1: Zone of interest: Does the plaintiff fall under the protections of the statute
2: Generalized Grievances: Injuries shared generally by many or all citizens
3: Rule against third party standing
- 1: Potential Plaintiffs should be allowed to decide for themselves to assert rights
- 2: Party advocating own rights is going to present a more thorough case
- Exception is
- 1: Close relationship between plaintiff and third party that the rights are inextricably bound
- 2: Genuine obstacles to the third party asserting their own rights. Privacy concerns, fear of retaliation etc
Mootness
A case is not moot when the harm to the plaintiff is continuing or when it is capable of being repeated on the plaintiff or others in the future.
There are 4 exceptions to this rule
1: An otherwise moot case should not be dismissed if it is likely to produce collateral consequences.
2: An otherwise moot case should not be dismissed if the challenged action is, quote, “capable of repetition yet evading review.
3: An otherwise moot case should not be dismissed if the mootness arises from the defendant’s voluntary cessation of the alleged misconduct.
4: In a properly certified class action lawsuit, the fact that the named plaintiff’s claims have become moot does not warrant dismissal of the entire suit.
Ripeness
- Determining whether a case is ripe requires looking at
(1) the hardship on the parties if the court doesn’t take up the matter of withholding court consideration and
(2) the fitness of the issue for judicial decision. - In order to be ripe, the plaintiff must allege that she
(1) already suffered some harm;
(2) is faced with a specific present harm; or
(3) is under a threat of specific future harm.
Political Question Doctrine
As with standing questions, you have to get into the merits and ask: What is the legal right here?
For an issue to be a non-justiciable political question, one of six tests (listed in descending order of importance and certainty) must be satisfied:
(1) Those issues committed by the constitution to another branch of government
(2) The Lack of judicially manageable standard for resolving the issue
(3) Necessity of making an initial policy determination calling for non-judicial discretion
(4) A lack of respect for the other branches of government in undertaking independent resolution of the case;
(5) An unusual need for unquestioning adherence to a political decision already made; or
(6) The potential for embarrassment for differing pronouncements of the issue by different branches of government.
Advisory Opinions
There needs to be an actual dispute amongst the parties and not an abstract opinion about the validity of a law rendered in the absence of a concrete dispute
How to weigh executive powers
1: Executive power is at its “maximum” when, in addition to Article II power, the President can rely on express or implied authority from Congress.
2: When the President acts in absence of either a congressional grant or denial of authority, he can rely only upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which the distribution of authority is uncertain.
3: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb. Because the President in such a situation would be disobeying federal law, such presidential actions would be allowed only if the law enacted by Congress is unconstitutional.
Executive Appointments and Removal
-Principal Officers: Anyone who is nominated by the president and confirmed by the Senate
-Inferior Officers: Officers whose work is directed and supervised by principal officers and is
1: Subject to removal by higher exec branch official ‘
2: Empowered to preform only specific, limited
duties
3: vested with limited jurisdiction
4: Given Limited Tenure
-The president may also appointment inferior officers if the congress so authorizes. The Appointments Clause also allows inter-branch appointments which are appointments by one branch of inferior officers in another branch.
- Removal Power: Supreme Court has held that the president has the exclusive authority to remove federal officers without congressional approval. Congress may impose conditions on the president’s removal such as requiring good cause for removal. These conditions will likely be upheld if it applies to officers which operate with some independence from the president or to inferior officers’ appointment by someone else other than the president. (Note, congress can remove federal officers through impeachment process.) Nonetheless, congress can’t interfere with removal in a manner that excessively subverts the president’s ability to control his subordinates and ensure that the laws are faithfully executed.
Recess Appointments
Recess Appointments
-The constitutions Recess Appointments Clause authorizes the president to fill vacancies when the senate is not in session. Recess appointments have the same effect as senate confirmation, but they last only until the end of the subsequent session of congress.
Treaties
Treaty and Foreign Affairs
-President has power to make treaties with advice and consent of 2/3 of the Senate.
1: President may enter into a treaty with a foreign
nation and
2: Treaty must be ratified by 2/3 Senate vote
President has the ability to rescind treaty without congressional approval. A treaty that violates some provision of the constitution is unenforceable.
Commander and Chief
Suspension of Habeas Corpus
- Suspension of Habeas Corpus
- Suspension clause provides that “privilege of the writ of habeas corpus” cannot be suspended except in case of rebellion or invasion when the public safety may require it.
Necessary and Proper Clause
- The necessary and proper clause grants Congress the power to make all laws necessary and proper (i.e. appropriate) for carrying into execution any power granted to any branch of the federal government.
- Congress cannot adopt a law that is expressly prohibited by another provision of the constitution.
Commerce Power
-Article 1, Section 8, clause 3 empowers congress to “regulate commerce with foreign nations and among the several states and with the Indian tribes.
Congress may regulate only three broad categories of activities:
(1) the channels of interstate commerce
(2) the instrumentalities of, or persons or things in, interstate commerce; and
(3) activities that substantially affect or substantially relate to interstate commerce.
- Basically, includes all activity affecting two or more states
- Can aggregate intrastate activity if there is a rational basis for doing so
- Commerce power is also used to limit the power of individuals over other individuals. Example is baring private racial discrimination in activities “connected with” interstate commerce.
- Congress cannot compel people to take part in interstate commerce.
Tenth Amendment
-All powers not delegated to the federal government by the Constitution are reserved to the states (or for the people).
NY v United States
-Congress may not pass regulations that have the effect of “commandeering” states’ legislative processes. There are two ways Congress may urge a state to adopt a legislative program consistent with federal interests:
(1) as part of its spending powers, Congress may attach conditions on states’ receipt of federal funds, or
(2) where Congress has the authority to regulate private activity under the Commerce Clause, Congress may offer states the choice of regulating that same activity according to federal regulations or having state law preempted by federal regulations.
These options allow states to decline compliance with federal regulatory standards if state citizens decide a federal policy is contrary to local interests. However, the take title provision deprives states of such a choice by requiring them to adopt federal regulations or take title to their waste. Hence, the take title provision does not present states with any option other than implementing the Act. Under the Supremacy Clause, Congress could preempt state radioactive waste regulation. However, Congress violates the Tenth Amendment where it directs states to regulate in that field.
Eleventh Amendment
-Makes states sovereign entities. Can’t be sued without their own consent.
In order to determine whether Congress has abrogated states’ sovereign immunity, two questions must be asked:
(1) whether Congress unequivocally expressed its intent to abrogate such immunity and
(2) whether Congress acted pursuant to a valid exercise of power.
Congress may not abrogate states’ sovereign immunity protected by the Eleventh Amendment unless through an exercise of power derived from §5 of the Fourteenth Amendment.
Taxing and Spending Powers
-Under the taxing and spending clause, Congress can condition funding on state compliance with federal policies, even if congress cannot directly legislate on the issue.
Spending power conditions. Congress can regulate states by imposing conditions on states to receive federal funding. This will not violate the 10th amendment if the conditions are
1: Clearly Stated
2: Relate to the purpose of the program
3: Are not unduly coercive (still allows the states a meaningful choice)
- Limitations on congress spending power
1: Sending must be for the general welfare
2: Conditions must be clear
3: Conditions should be related to the federal government’s interests
4: Conditions must not conflict with other constitutional provisions (independent constitutional bar) An independent constitutional bar prevents congress only from compelling states to act unconstitutionally.
Thirteenth Amendment
- 13th Amendment provides that neither slavery nor involuntary servitude shall exist in the United States
- It is applicable to state and private action
Fourteenth Amendment
- 14th Amendment prohibits states (not fed or private persons) from depriving any person of life, liberty, or property without due process and equal protection of the law. Through the Due Process Clause, most protections of the Bill of Rights are applicable to the states.
- Section 5 of the 14th amendment is an enabling clause that gives congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Under section 5, congress may not expand existing constitutional rights or create new ones, it may only enact laws to prevent or remedy violations or rights already recognized by the courts.
- To adopt a valid law, Congress must
1: point to a pattern of state violation of such rights and
2: adopt legislation that is congruent and proportional (narrowly tailored) to solving the identified violation.
Must be significant relationship between constitutional violation and regulation.
Fifteenth Amendment
15th Amendment is a limitation on both states and the federal government. It prohibits them denying any citizen the right to vote based on account of race or color. The 15th Amendment contains an enabling clause that allows Congress to adopt legislation protecting the right to vote from discrimination.
Shelby County v Holder (outdated law that required any change in voting laws to be approved by fed court or department of justice. Didn’t apply to all states)
A federal law that departs from the fundamental principles of federalism must be justified by current needs.
Preemption
Federal law will always displace or supersede state law if one of three conditions exists
1: Federal law says it has a preemptive effect
2: State law and fed law conflict
3: Fed law has occupied the entire field of regulation, leaving no room for states to act (field preemption)
Express Preemption
-A federal law may expressly provide that the states may not adopt laws concerning the subject matter of the federal legislation. These are narrowly construed.
Implied Preemption
Even if a federal law does not expressly prohibit state action, state laws will nevertheless be held impliedly preempted if
(1) they actually conflict with federal requirements,
(2) prevent achievement of federal objectives,
(3) or congress has preempted the entire field.
- Supreme Court has stated that in all preemption cases (and especially involving a field traditionally within the power of the states, health, safety or welfare) it will start with the presumption that historic state police powers are not to be superseded unless that was a clear and manifest purpose of congress.
Dormant Commerce Clause
Dormant Commerce Clause
-If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the legislation:
A statue is discriminatory in such that it favors an in-state interest over an out of state interest or if it blocks interstate commerce at the states border.
-Under this standard the law will be struck down unless the state can prove that the law serves an important noneconomic state interest and there are no reasonable alternatives available.
If the statute does not discriminate, but places an incidental burden on interstate commerce, apply intermediate scrutiny. The test applied is the pike balancing test.
-A nondiscriminatory law will be invalidated only if the burden on interstate commerce outweighs the promotional of legitimate state or local interests.
Legitimate interests are those related to states police power. The power to provide for the health, safety, and well-being of its citizens. A law is rationally related to an objective if the connection between the law and objective is not arbitrary or clearly unreasonable. Courts will consider
1: Magnitude of the benefit, magnitude of burden, and the extent of the burden on interstate commerce.
2: Local benefits to the state
3: the availability and feasibility of nondiscriminatory alternatives.
Dormant Commerce Clause Exceptions
Exceptions
- The Dormant Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant.
- Limitation: When a state or local government does not violate the Dormant Commerce Clause by preferring its own citizens while acting as a market participant, this must also be analyzed with the Privileges and Immunities Clause. There is no market participant exception to the Privileges and Immunities Clause. State must therefore show substantial justification for the legislation.
Nondiscriminatory Laws – Balancing Test
-A nondiscriminatory state or local law that that imposes a burden on interstate commerce will be invalidated only if the burden on interstate commerce outweighs the promotion of legitimate (not discriminatory) local interest. Case by case balancing test
Privileges and Immunities Clause
Does not apply to corporations or aliens
- Only applies when discrimination is intentionally protectionist in nature
- There are two Privileges and Immunities Clauses. The 14th Amendment one, and the Article IV one. The 14th Amendment one protects attributes of United States Citizenship. The Article IV one prevents some discrimination by states against nonresidents.
A provision of Article IV of the United States Constitution that prohibits state governments from discriminating against out-of-state residents without a substantial reason when denying certain rights to individuals. Although Article IV does not list the protected privileges and immunities, the Supreme Court has interpreted the clause to apply to matters including the right to engage in a common occupation within a state, the right to own private property in a state, and the right to access a state’s courts.
Privileges and Immunities Clause Exception
-However: A state law discriminating against nonresidents may be valid if the state has a substantial justification for different treatment. In effect, it must show that nonresidents either
1: Cause or are part of the problem it is trying to solve and
2: There are no less restrictive means to solve the problem
Economic Substantive Due Process
Lochner case (bakers hours regulations)
The general right of an employer to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment to the United States Constitution. The right to purchase or to sell labor is part of the liberty protected by this Amendment, unless there are circumstances that exclude the right. States may impose reasonable conditions on the right to contract that further the health, safety, and general welfare of their citizens. Pursuant to their constitutional police powers, states may prohibit contracts which violate either a federal or state statute, or contracts to use one’s personal property for immoral or illegal purposes. Additionally, precedent decisions permit states to regulate certain types of employment when the nature of the work or the character of the employees warrants it. Specifically, states have previously been permitted to regulate the hours of employees in the smelting and mining fields. However, state police power is not absolute and must be balanced against individual liberty concerns protected by the Fourteenth Amendment. In the present case, the baking profession does not present any of the concerns justifying the states’ regulation of hours in some other professions. The regulation in question was not a health law, but was an arbitrary interference into the individual right of employers and employees to contract. The law is thus invalid and the decision of the court of appeals is reversed.
Incorporation Doctrine
-The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment.
A Bill of Rights guarantee applies to the states if it
1: is fundamental to the nation’s scheme of ordered liberty or
2: deeply rooted in the nation’s history and tradition.
Takings Clause
- The fifth amendment prohibits governmental taking of private property for public use without just compensation.
- A use will be interpreted liberally as long as it is rationally related to a public purpose
Taking V Regulatory Taking
- A taking will almost always be found if there is an actual appropriation, destruction of property, or permanent physical invasion by the government or by authorization of the law
- Denial of all economic value = Taking
- Temporary denial of economic use = not taking
- Decreasing economic value = not taking
Penn Station v NY
A new multi-factor test is articulated for determining when a taking requires the payment of just compensation to a property owner. When determining whether a state regulation constitutes a taking of private property for public use with the requirement of just compensation under the Fifth and Fourteenth Amendments, courts should consider
1: the economic impact of the regulation on the owner,
2: the extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations, and
3: the character of the government action involved in the regulation. Additionally, precedent decisions often do not find a taking when private property is destroyed to promote the health, safety, and general welfare of the public.
Lucas Case
-A state regulation that completely deprives private property of all its economic value constitutes a taking under the Fifth and Fourteenth Amendments that requires the payment of just compensation to the property owner, unless the economic activity prevented by the regulation is not part of the owner’s initial title or property rights when acquiring the property.
Lorreto case
-A permanent physical occupation authorized by government is a taking requiring the payment of just compensation without regard to the public interests that it may serve or the fact that it only has a minimal economic impact on the property owner.
Kelo Case
- A state’s use of eminent domain to condemn property from private individuals and redistribute it to other private individuals constitutes a “public use” under the Fifth Amendment if it is rationally related to a conceivable public purpose.
Substantive Due Process and Equal Protection
- The due process clause and the equal protection clause guarantee the fairness of laws. substantive due process guarantees that laws will be reasonable and not arbitrary, and equal protection guarantees that similarly situated persons will be treated alike. Both require the court to review The Substance of the Law rather than the procedures employed.
1: Substantive due process generally where a law limits the liberty of ALL persons to engage in some activity, it is a due process question.
2: Equal protection: Where a law treats a person or class of persons differently from others, it is an equal protection question.
Strict Scrutiny
- The court will apply a strict scrutiny test when a suspect classification or fundamental right is involved. Under the strict scrutiny standard, a law will be upheld only if it is necessary to achieve a compelling government purpose. Court will always consider if there is a less burdensome means for accomplishing the goal.
- Gov has burden of proof under strict scrutiny
Fundamental rights include:
- Rights to travel
- Privacy
- Voting
- All first amendment rights
Suspect Classifications
-Race, national origin, alienage
Intermediate Scrutiny
- The court uses intermediate scrutiny when a classification based on gender or legitimacy is involved. Under this standard, a law will be upheld if it is substantially related to an important government purpose.
- Burden of proof unclear, but appears to be on Gov
Quasi suspect Classification
-Gender, marital and non-martial children
Rational Basis Review
Rational basis review is a doctrine of US constitutional law used to evaluate the permissibility of exceptions to the equal protection clause.
Examples of grounds of discrimination subject to rational basis review include age, disability, wealth, political beliefs or affiliations, and criminal history. Largely economic
- Used when the other two standards are not applicable (most of the time). Under this standard, a law will be upheld if it is rationally related to a legitimated gov interest. Difficult test to fail, will only do so if it is arbitrary or irrational.
- Burden of proof on challenger, great deference to the legislature.
All other classifications
-Mentally challenged people, age, wealth, abortions, education
How to prove Discriminatory Classification
- There must be intent to discriminative on part of the gov. Needs to be proved, can do so in 3 ways.
1: Facial Discrimination (discriminatory on its face)
2: Discriminatory Application (appears neutral on its face, but when applied it is discriminatory)
- Person challenging gov action needs to show gov officials had a discriminatory purpose for enacting it.
3: Discriminatory Motive (appears neutral on its face and impact but has a disproportionate impact on a particular class of persons.)
Delegation of Legislative Power
Congress has broad discretion to delegate its legislative power to executive officers and or administrative agencies and even delegation of rule-making power has been upheld.
However, congress can’t delegate away unique constitutional powers like the power to declare war and there needs to be a clear standard to follow then the power is delegated.
Congress also can’t delegate more power to itself
3 Limits on Congressional Oversight of the Courts
1: First, Congress cannot exercise its power over federal jurisdiction in a way that is itself unconstitutional, whether because it violates Article III or some other constitutional provision.
2: Second, Congress cannot exercise its power over federal jurisdiction in a way that expressly dictates how the federal courts should resolve a pending case.
3: Third, Congress cannot provide for extrajudicial revision of federal courts’ final judgments by either the executive or legislative branch. For example, Congress cannot authorize an executive branch official to review and, if necessary, set aside judgments reached by the federal courts in cases involving veterans’ pensions.
When does congress exceed its spending power?
Congress exceeds its authority under the Spending Clause only if the spending condition:
(1) is itself unconstitutional
(2) bears no relationship whatsoever to the funds being spent, or
(3) is so unduly coercive that the recipient does not have a meaningful choice about whether or not to accept the funds.
Habeas Corpus
In light of Eisentrager, three factors are relevant in determining the scope of the Suspension Clause with respect to detainees:
(1) the citizenship and status of the detainee and the adequacy of the process that determines the status;
(2) the nature of the sites where apprehension and then detention took place; and
(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
