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Con law Flashcards

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1
Q

Federal Judicial Power extends to cases involving….

A
  • Interpretation of the C, federal laws, treaties and maritime law and
  • disputes between states, states and foreign citizens, citizens of diverse citizenship
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2
Q

SCOTUS has original Jurisdiction over…

A

cases in which a state is a party.

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3
Q

SCOTUS Appellate Jurisidiction

A

Writ of certiorari (discretionary JD) over cases from state court concerning constitutionality of a state or federal statute or treaty and state statutes that violate federal law. All cases from federal courts of appeal.
Appeals from decisions by 3 judge federal district court panels involving injunctive relief.

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4
Q

Justiciability—Prohibition on Advisory opinions

A

There must be a specific present harm or threat of specific future harm. Fed courts can issule declaratory relief if there is an actual dispute between parties having adverse legal interests. Complainants must show that they have engaged in or wish to engage in specific conduct and that the challenged action poses real and immediate danger to interest.

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5
Q

Justiciability—Ripeness

A

To avoid advisory opinions courts wait until policies have been formalized and can be felt in concrete ways. Look at two factors: fitness for judicial decision (does not rely on contingencies or uncertain events) and hardship of withholding court consideration.

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6
Q

Justiciability—Mootness

A 
Real controversy must exist at all stages of review. Exception for cases involving issues that capable of repitition but evading review. 
*class actions: class rep can continue representation after mootness is other class claims remain viable
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7
Q

Justiciability—Standing components

A

in order the have standing, a plaintiff must have suffered an injury in fact (an injury that is concrete and particularized; need not be economic but mere violation of statute is not enough) that has a causal relationship to the conduct complained of and is capable of being redressed by a favorable decision.

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8
Q

Common standing issues: congressional conferral of standing

A

Congress cannot legislate around the case and controversy requirement. But may by statute create new interests from which injuries can stem

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9
Q

Common standing issues: Standing to enforce gov statutes

A

A plaintiff may have standing to force gov actors to conform their behavior to a federal statute if she is withing the zone of interests congress meant to protect

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10
Q

Common standing issues: Standing to assert the rights of others

A

Generally not allowed. But if claimant has standing in their own right, she may assert the rights of a third party if

  • difficult for third party to assert own rights (would require disclosure of membership
  • special relationship exists between claimant and third party
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11
Q

Common standing issues: Standing of Organization

A

An org has standing if

  1. injury in fact to members on their own behalf
  2. injury related to org’s purpose
  3. individual member participation not required
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12
Q

Common standing issues: No citizenship standing

A

No standing merely as citizens to claim gov action violates law.
Note: person does have standing to challenge a law that violates the 10th amendment by interfering with power reserved to states if injury in fact

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13
Q

Common standing issues: Taxpayer standing requirements

A

Generall no standing to challenge gov expenditures or tax credits. Exception: Taxpayer may have standing where measure was enacted under Congress’ taxing and spending power and exceeds a specific limitation on that power (the establishment clause).

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14
Q

Common standing issues: Legislator standing

A

Legislators may have standing to challenge if they have a sufficient personal stake and concrete injury

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15
Q

Justiciability—Adequate and independent state grounds

A

SCOTUS will not exercise jurisdiction if state court judgment is based on adequate and independent state law grounds. Must be fully dispositive of the case and wholly based in state law.

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16
Q

Justiciability–Political Question Doctrine

A

Federal courts will not decided political questions. political questions are those that are wholly committed to another branch of government under the C or inherently incapable of resolution or enforcement by the judicial branch.

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17
Q

11th Amendment limits on federal courts

A

11A prohibits federal courts from hearing a private party’s or foreign government’s cliam against a state government. Bars claim in which state is named party or state would have to pay retroactive damages. SOVEREIGN IMMUNITY bars suits against state in state court without consent.

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18
Q

Exceptions to 11A immunity

A

Actions that can be brought against state officers in fed court:

  1. actions to enjoin state officers from future conduct even if allow for prospective payment
  2. actions for damages against officer in personal capacity
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19
Q

Congress’ enumerated and implied powers

A

Congress can exercise those power enumerated in the C and auxilary powers necessary and proper to carry out all enumerated powers

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20
Q

Necessary and proper power

A

Congress has the power the make all laws necessary and proper for executing its enumered powers. Cannot be the sole basis for federal law. Must work in conjuncture with another power.

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21
Q

Enumerated Powers: Taxing Power

A

Congress has the power to tax and most taxes will be upheld if they bear a reasonable relationship to revenue production or if congress has the power to regulate the activity taxed.

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22
Q

Enumerated Powers: Spending Power

A

Congress may spend to provide for the common defense and general welfare. Spending allowed for any public purpose

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23
Q

Enumerated Powers: Commerce Power

A

Congress has the power to regulate all foreign and interstate commerce. To come with in this power the regulating law must either:

  • regulate channels of interstate commerce
  • regulate instrumentalities of interstate commerce or
  • Regulate activities that have a substantial effect on interstate commerce.
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24
Q

Enumerated Powers: Commerce Power—When can congress regulate intrastate activity?

A

When intrastate activity is commercial or economic and there is a rational basis for congress to conclude that the activity in the aggragate substantially effect interstate commerce. If the activity is not commercial or economic, congress must show a direct substantial effect on interestate commerce

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25
Q

Enumerated Powers: Investigatory Power

A

Implied power. Investigation must be expressly or impliedly authorized by congressional house

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26
Q

Enumerated Powers: Property Power

A

Congress has the power to dispose of and make rules for territories and other properties of the US. No express limitation on disposing of property. Takings must be for purpose of effectuating an enumerated power.

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27
Q

Enumerated Powers: Federal Police Powers

A

There are none. Fed gov has police powers over DC, federal lands, military bases and indian reservations.

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28
Q

Enumerated Powers: Power over citizenship

A

Congress may establish uniform rules of naturalization . Has plenary power over aliens. Aliens have no right of entry and can be denied entry based on political beliefs. Resident aliens entitled to notice and hearing before dportation. Congress’s power over naturalization is exslusive.

29
Q

Delegation of Legislative Power

A

Legislative power may be delegated to exec or judiciary branch as long as intelligible standards are set and the power is not uniquely confined to congress. Congress may not appoint members of a body with admin or enforcement powers. Limited by separation of powers concerns

30
Q

Speech and Debate Clause

A

Conduct that occurs in the regular course of the federal legislative process and the motive behind that conduct are immune from prosecution. Does not cover the republication of defamatory statement made in congress. Extends to aides

31
Q

Bicameralism and Presentment requirement

A

To validly pass a law Congress must pass the law through both houses and present the bill to the present for signature and veto

32
Q

Exec’s Domestic Powers: Appointment of Officers

A

P appoints officers whose appointments are not otherwise provided for in the C with the advice and consent of the senate. Congress may vest appointment of inferior officers in the P alone. Congress may not appoint members of a body with admin or enforcement powers.

33
Q

Exec’s Domestic Powers: Removal of officers

A

P can remove high level, purely exec officers (cabinet members) at will. Congress may provide limitations on other officers (good cause shown). Congress can remove exec officers through impeachment only.

34
Q

Exec’s Domestic Powers: Pardons

A

P may grant pardons for all federal offense but not for impeachment or civil contempt. Power cannot be limited by congress

35
Q

Exec’s Domestic Powers: Veto power

A

If P vetos, still becomes law if overriden by 2/3 vote in EACH house. P has 10 days to exercise veto. if no action = automatic veto where congress is not in session. If congress is in session = bill becomes law.
A line item veto is UnC.

36
Q

Exec’s Domestic Power: internal affairs

A

Unsettled. Justice Jackson’s Youngstown test applied:

1) if P acts with express or implied authoirty of congress, authority at a maximum and likely valid
2) if P acts where Congress is silent, action is upheld unless it usurps power of another branch or prevents branch from carrying out if tasks
3) if P acts against express will of Congress, he has little authority and action is liekly invalid. (Take Care Clause)

37
Q

Exec’s Power over External Affairs: War

A

No power to declare war but may act militarily in actual hostiliies against the US

38
Q

Exec’s Power over External Affairs: Treaty POwer

A

Power to enter into treaties with the consent of 2/3 of the senate. Treaties treated laterally to federal law. Last in time when conflicts with federal law. Not co-equal with the C. Fed law will prevail over executive agreements.

39
Q

Executive Privilege

A

Presidential documents and conversations are presumptively privileged but privilege yields to need for such materials as evidence in criminal case.

40
Q

Executive Immunity

A

P has absolute immunity from civil damages on any action taken within official responsibilities. No immunity for acts that occurred prior to taking office. Immunity may extend to aides exercising discretionarty authority for the P in sensitive areas of national concern. Other aides entitled to qualified immunity.

41
Q

Impeachment

A

The P, VP, and all civil officers subject to impeachment Grounds: treason, bribery, high crimes and misdemeanors. Majority vote in the house to impeach 2/3 Senate to remove.

42
Q

Rule regarding exclusive federal powers vs powers reserved to the states

A

Some power are exclusively federal because they are reserved to fed gov in the C. Some are impliedly federal (federal citzienship, declaration of war). All powers that are not exclusively federal are reserved to the state as police powers.

43
Q

Supremacy Clause and Pre-emption

A

Under the supremacy clause, where fed gov and state gov have concurrent powers, the fed law my supercede or pre-empt federal law. Pre-emption may be express or implied. Presumption against pre-emption unless congress says so clearly

44
Q

Implied Pre-emption Types

A

Conflict between fed and state law = state law is impliedly pre-empted
State prevents achievement of federal objective = state law pre-empted.
field pre-emption = state law pre-empted where fed gov has regulated in such that occupys the entire field. Fed law governs even where fed and state law do not conflict.

45
Q

Intersovereign litigation

A

US can sue states w/o their consent. States can only sue the US with consent. States can sue each other without consent. SCOTUS has OG jurisdiction. Suit against federal officer to be paid out of the public treasury is considered a suit agains the US itself.

46
Q

Fed tax/reg of state/local govs: tax/reg applying to both state and private entities

A

Valid. Congress can tax/regulate local gov activities if the law or tax applies to both the public and private sector (minimum wage laws).

47
Q

Fed tax/reg of state/local govs: Tax/reg applying only to the states

A

A tax/reg that is only applicable to purely public gov activity is may be invalid as a violation of 10th Amendment. EXCEPTION: congress may restrict state activities that violate civil liberties and Congress can condition spending under its spending power. Conditions cna be imposed in areas where congress can’t normally regulate if the conditions are clearly stated, relate to the purpose of the program and are not unduly coercive.

48
Q

Fed tax/reg of state/local govs: Comandeering state officials

A

Sort of a 10A thing, sort of just a federalism thing: the fed gov cannot commandeer state officials to enforce federal laws.

49
Q

State tax/reg of federal government

A

State may not directly tax federal instrumentaliies without the consent of Congress. Nondiscriminatory, indirect taxes are fine. (state income tax of federal official)

50
Q

Article 4 Privileges and Immunity Clause Generally

A

The Article 4 Privileges and Immunities Clause prohibits discrimination by a state against nonresidents. Corporations and aliens are not citizens for the purpose of Article 4. The Article protects the privileges of state citzienship.

51
Q

Rule for Article 4 Privileges and Immunity Law

A

The clause prohibits discrimination by a state against nonresidents of the state when the discrimination concerns fundamental rights (rights related to important commercial activities like pursuing a livelihood) or civil liberties. Clause applies only against laws that are intentionally protectionist.

52
Q

Exception to Article 4 Privileges and Immunities Rule + Special note.

A

A law that is intentionally discrriminatory against nonresidents may be valid where it is substantially justified and there is no less restrictive means. Essentially state has to show that nonresidents are part of or a cause of the problem.
Special Note: try dormant commerce clause analysis too.

53
Q

14th Amendment Privileges and Immunities Clause

A

14A prohibits states from denying their citizens the privileges of national citizenship. Look for rights flowing from relationship to US gov (right to travel, right to vote, enter public lands etc). Bill of Rights not included. This is your new state citizen case. Look for residency requirements.

54
Q

State Reg of Commerce: Interstate Commerce where Congress has spoken

A

Where Congress has spoken = conflicting law are superseded, nonconflicting laws may be pre-empted. States cannot discriminate against interstate commerce. Congress can though and thus can pass a law that allows the state to discriminate against interstate commerce. Congress cannot allow states to violate civil liberties

55
Q

State Reg of Commerce: Interstate Commerce where Congress has NOT spoken

A

(Dormant Commerce Clause). Where Congress has not spoken, a state may regulate local aspects of interstate commerce but must not favor local economic interests or otherwise unduly burden interstate commerce.

56
Q

Dormant Commerce Clause: facially discriminatory laws

A

State or local laws that discriminate to protect local interests are almost always invalid.
EXCEPTION: valid if it furthers an important non-econmic state interest and there are no reasonable alternatives available.
EXCEPTION: state may prefer own citizens when acting as a market participant.
QUASI Exception: SCOTUS more lenient when law favors gov action that is traditional gov function.

57
Q

Dormant Commerce Clause: Nondiscriminatory laws

A

Nondiscriminatory law that burden interstate commerce is valid unless the burden outweighs the promotion of the legitimate local interest. Look to less restrictive alternatives. Different rule may apply for corporation governance laws.

58
Q

Sobriety Checkpoints: which amendment

A

4th amendment unreasonable search and seizure

59
Q

Sobriety Checkpoints: key question

A

The stop of the vehicle is a seizure. Pertinent question is whether the “search” of the person is reasonable.

60
Q

Sobriety Checkpoints: test

A

Determine reasonableness by balancing 3 factors:

  1. Invasion of person’s privacy
  2. Government’s interest in the matter
  3. degree to which the checkpoint advances the gov’s interest
61
Q

Sobriety Checkpoints: SCOTUS conclusion

A
  1. Invasion of privacy is slight because person only stopped for a minute
  2. gov interest in stopping drunk driving is highly compelling
  3. checkpoints advance this interest even if there are other ways of doing so
62
Q

Sobriety Checkpoints: MISC conclusion

A

MI constitution affords more protection than the 4th amendment does. Checkpoints violate the MI constitution.

63
Q

2nd amendment: difference between MI and SCOTUS

A

SCOTUS: in Heller, conferred an individual right to bear arms outside of the militia.
MI: the MI constitution plainly confers the individual right to bear arms

64
Q

8th amendment prohibition on cruel and unusual punishment and minors

A
  • UnC to sentence D to death if crime committed before 18th birthday
  • UnC to sentence D to life without parole for a non-homicide committed before age 18
  • Mandate that judge sentence life without parole on juvenile if it does not allow judge to take into account attendant circumstances.
65
Q

State Tax on Interstate Commerce: General framework

A

Unless authorized by Congress, a discriminatory tax violates the commerce clause. A nondiscriminatory tax is valid if there is

  1. a substantial nexus to the taxing state (business avails itself of privilege of doing business in state)
  2. Fair apportionment
  3. Fair relationship between tax and benefits offered by the state
66
Q

Use taxes

A

Taxes imposed on goods purchased outside of the state but used within it are valid. Interstate seller may be required to collect the use tax if sufficient nexus between seller and the state (maintains office in state)

67
Q

Ad Valorem Property taxes: Commodities in interstate commerce

A

No tax on commodities in interstate commerce. Starts when journey starts or reaches carrier. Ends when journey ends. Breaks don’t break chain

68
Q

Ad Valorem Property taxes: instrumentalities of interstate commerce

A

Allowed if the instrumentality
1. acquired a taxable situs in the taxing state (receives benefits or protection from the state)
and
2. is approtioned fairly (approximates average physical presence in the state)

Con Law (2 decks)

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