Con Law

Question 1

Justiciability - Overview

Answer 1

Whether a lawsuit is capable of judicial resolution as a case or controversy. Components:

(1) No advisory opinions
(2) Ripe and not moot
(3) Standing

Question 2

Justiciability - No Advisory Opinions

Answer 2

Federal courts may not render advisory opinions, which lack: (1) an actual dispute between adverse parties, OR (2) any legally binding effect on the parties

Question 3

Justiciability - Ripeness and Mootness

Answer 3

Ripeness - Federal courts may only decide controversies that are ripe for review
* Pre-enforcement review of laws (DJ) are not ripe UNLESS: (1) substantial hardship in the absence of review, AND (2) issues and record are fit for review

Mootness - Fed courts may only decide live controversies. Live if: (1) in suit for injunction/DJ, challenged law or conduct continues to injure, OR (2) in suit for damages, plaintiff not made whole

• Exceptions (not moot despite injury passing):
  (a) Injury is capable of repetition yet evades review because of inherently limited duration
  (b) D voluntary ceases activity but may restart at will
  (c) In class actions, ONE P suffers ongoing injury

Question 4

Justiciability - Standing

Answer 4

Standing requires: (1) Injury, (2) Causation, AND (3) Redressability

• Injury - Any harm that is (1) concrete, and (2) particularized
  (a) NOT ideological objections or generalized grievances as a citizen/taxpayer, EXCEPT:
• • Taxpayer challenging own liability
• • Congressional (not executive) spending in violation of Establishment Clause
    (b) Third-party injury exceptions:
• • Close relationships - P and TP injured; TP unable/unlikely to sue; P can adequately represent TP
• • Organizations on behalf of all members - Members’ injury related to org’s purpose; members not seeking individualized damages
• • Free speech over-breadth - Party whose speech can be censored sues on behalf of those whose speech cannot
• Causation - Injury is fairly traceable to D
• Redressability - Favorable decision can remedy the harm

Question 5

Sovereign Immunity

Answer 5

States can’t be sued

• Exceptions:
  (a) Waiver by states
  (b) Lawsuits where P is another state or feds
  (c) Bankruptcy proceedings
  (d) Clear abrogation by Congress under 14A to prevent discrimination
• Doesn’t apply to:
  (a) State officers in suits for injunctive relief or money damages from own pocket
  (b) Local govt’s

Question 6

SCOTUS Review

Answer 6

• Final Judgment Rule - Hears a case only after there’s been a final judgment by the highest state court capable of rendering a decision, a federal CoA, or (in special circumstances) a 3-judge district court
• Independent and Adequate State Grounds - No review of a fed q if state court decision rests on an IASD (i.e. if the outcome would be the same regardless of how the fed q is decided)

Question 7

Fed Leg Power - Overview

Answer 7

• Limited to enumerated powers; no general police powers EXCEPT over federal land, Indian reservations, and DC
• N&P Clause - Not a basis of power, but allows Congress to choose any rational means to carry out an enumerated power

Question 8

Fed Leg Power - Enumerated Powers

Answer 8

Taxing and Spending

• Congress may tax and spend to provide for the general welfare, including any public purpose not prohibited even if not within an enumerated power
• Spending conditions:
  (a) Strings must related to purpose of spending and not violate Constitution
  (b) Strings can’t be unduly coercive

Commerce Power

• Congress can regulate commerce w: foreign nations, Indian tribes, bw states
• Interstate commerce includes: (1) channels of IC, (2) instrumentalities of IC, and (3) substantial effect on IN in aggregate, of even purely local activities
  (a) Limits on IC - Can’t (1) regulate noneconomic activity in area traditionally regulated by states, and (2) compel participation in commerce, notwithstanding substantial effects test

Question 9

Fed Leg Power - Delegation

Answer 9

• To agencies w/ intelligible principle
• To president, but NO line-item veto (violates bicameralism and presentment)
• To itself, but NO legislative veto to void duly enacted laws

Question 10

Fed Exec Power

Answer 10

Domestic powers:

• Enforcement (and duty) to execute laws
• Inherent/implied presidential powers:
  (a) Highest where authorized by Congress
  (b) Lowest where prohibited by Congress
  (c) Gray area where neither

Foreign powers:

• Can’t declare war, but has broad discretion to deploy troops internationally to protect American lives and property
• Treaties and Exec Agreements:
  (a) Treaties trump existing and future STATE law, and existing (NOT future) FED law
  (a) Exec agreements trump existing and future STATE law, but NO FED law

Question 11

Federalism - 10A

Answer 11

Powers not granted to US, or prohibited to the states, are reserved to the states or the people

• General police powers
• Anti-commandeering - Can’t compel states to enact or administer federal programs
  (a) Non-coercive spending conditions are NOT commandeering

Question 12

Federalism - Supremacy and Preemption

Answer 12

Supremacy Clause - Federal law preempts inconsistent state and local laws

Preemption:

• Express
• Implied
  (a) Conflict - (1) Impossible to follow both federal and state law, OR (2) state law impedes federal law
  (b) Field - Extensive federal regulation indicates congressional intent to “occupy the field”

Question 13

Federalism - Dormant Commerce Clause

Answer 13

Prohibits state laws that discriminate against or unduly burden interstate commerce

Test:

• Discriminatory laws (favoring in-state over out-of-state commerce) are invalid UNLESS: (1) Necessary to achieve important gov’t purpose unrelated to economic protectionism, AND (2) No less discriminatory alternatives
• Non-discriminatory laws (evenly applied to in-state and out-of-state commerce) are valid unless the burden on IC clearly outweighs non-protectionist benefits

Exceptions:

• Congressional approval
• State itself is a market participant (buyer/seller)

Question 14

Federalism - P&I Art. IV

Answer 14

Prohibits state laws that discriminate against out-of-state ~U.S. citizens~ re: (1) important commercial activities (earning livelihood), OR (2) fundamental rights

Test:
Discriminatory laws are invalid UNLESS: (1) Necessary to achieve important gov’t purpose, AND (2) no less discriminatory alternatives

Question 15

Federalism - P&I of 14A

Answer 15

• Fundamental right to interstate travel (enter/leave state and get equal treatment once a permanent resident)
• No fundamental right to int’l travel
• Right to petition fed gov’t

Question 16

Individual Liberties - Incorporation

Answer 16

DPC of 14A incorporates protections against states EXCEPT 3A quartering, 5A right to grand jury indictment, and 7A right to jury in civil cases

Question 17

Individual Liberties - State Action

Answer 17

• State law
• State officials acting officially
• Private party performs function done by gov’t (1) traditionally, AND (2) exclusively
• Significant state involvement (e.g. assistance, encouragement, supervision, entwinement, or approval) in private conduct

Question 18

Individual Liberties - Levels of Scrutiny

Answer 18

Rational Basis

(a) Presumed valid
(b) Burden on challenger
(c) Rationally or reasonably related to a rational or legitimate interest

Intermediate Scrutiny

(a) No presumption of validity
(b) Burden on state
(c) Narrowly tailored (substantially related or close fit, not least restrictive) to serve an important or significant state interest

Strict Scrutiny

(a) Presumed invalid
(b) Burden on state
(c) Narrowly tailored (least restrictive) to serve compelling state interest

Question 19

Individual Liberties - Procedural DP

Answer 19

Individual has right to fair process when gov’t acts to deprive of life, liberty, or property

• Deprivation = Intentional rather than negligent
  (a) Liberty - Physical freedom, constitutional rights
  (b) Property - real and personal, gov’t entitlements to which an individual has a reasonable expectation of continued receipt
• Process due:
  (a) Notice - Reasonably calculated to inform person of deprivation
  (b) Opportunity to be heard - Pre-deprivation hearing, unless impracticable
• • Mathews balancing test - (1) Importance of interest to individual, (2) Risk of error, (3) Accuracy gain from add’l procedures, (4) Burden on gov’t
    (c) Neutral decisionmaker - No actual or serious risk of bias

Question 20

Substantive DP - Overview

Answer 20

Types of Rights:

• Enumerated
• Unenumerated
• Above can be ~fundamental~ if: (1) deeply rooted in history/tradition, (2) implicit in concept of ordered liberty, OR (3) identified as fundamental by reasoned judgment and new insight
• Unspecified (private consensual adult sexual intimacy, refusing medical treatment, bearing arms)

Levels of Scrutiny:

• Strict Scrutiny (all fundamental):
  (a) Marriage
  (b) Procreation
  (c) Contraception
  (d) Custody, care, and upbringing of children
  (e) Living w extended family
  (f) Interstate travel
  (g) Voting
• Undue burden - Abortion (fundamental right)
• Rational Basis (Non-fundamental):
  (a) Economic rights
  (b) Education
  (c) Physician-assisted-suicide

Question 21

Substantive DP - Voting

Answer 21

• Unenumerated fundamental right
• Requirements that protect, not hinder, voting get rational basis
• One person, one vote:
  (a) EP requires state and local voting districts to be substantially equal in pop’n (<10% variance presumptively valid)
  (b) Art. I requires congressional districts within a state to be as close to ~mathematical equality~ as possible (much stricter)
  (c) Racial gerrymandering gets strict scrutiny if race was ~predominant factor~
  (d) Political gerrymander OK - nonjusticiable political q

Question 22

Substantive DP - Abortion

Answer 22

• Pre-viability:
  (a) Scope - State may regulate (but not prohibit) abortions to protect woman’s health or life of fetus
  (b) Test - Undue burden (substantial obstacle, weighting benefits/burdens)
• Post-viability:
  (a) Scope - State my prohibit abortions unless necessary to protect woman’s life or health

Question 23

EP - Levels of Scrutiny

Answer 23

Rational Basis:

• Age
• Disability
• Wealth
• Alienage classifications ~by Congress~
• Alienage classifications by state related to democratic governance
• All other classifications

Intermediate Scrutiny:

• Gender
• Non-marital children
• Undocumented alien children (maybe)

Strict Scrutiny:

• Race
• National origin
• Alienage classifications ~by state~ generally
• Denial of fundamental rights to some

Question 24

Takings

Answer 24

Gov’t can’t take private property unless (1) for public use, and (2) just compensation paid

• Property = real personal property and some intangible property (NOT welfare benefits tho)
• Physical takings
  (a) Temporary occupation - Maybe depending on degree of invasion, etc.
  (b) Development exception - Traditional conditions on property development’s are not a taking if benefits are roughly proportional to burdens
  (c) Emergency exception - Less likely to find a taking
• Regulatory takings
  (a) Bright-line rule - Taking if reg does not merely diminish property value but leaves no economically viable use
  (b) Ad-hoc analysis - Consider: (1) Economic impact of reg, (2) Interference w investment-backed expectations, and (3) character of gov’t action
• Public purpose = Any purpose that government reasonably believes will benefit public
• Just compensation = Fair market value at time of taking

Question 25

Retroactive Legislation - Contract Clause

Answer 25

“No State shall pass any law impairing the Obligation of Contracts”

• Applies to state and local laws ONLY
• Tests:
  (a) For private contracts - Substantial impairment of existing rights invalid UNLESS (1) legitimate or significant purpose, AND (2) reasonable or appropriate means
  (b) For public contracts - Intermediate or strict scrutiny