CON LAW Flashcards
Justiciability
Case must be justiciable to be heard in fed. court, which means there must be a case or controversy presented
Must have:
- standing
- mootness
- ripeness
- collusive suits
- political question
Standing
Party must have a concrete interest in the outcome of a claim to have the claim heard in fed. court
- concrete and particularized injury
- injury is fairly traceable tot he challenged conduct, and
- favorable ruling will eliminate the harm
Third Party Standing
- Plaintiff has suffered individual injury, AND
- third parties find it difficult to assert their own rights, OR
- plaintiff’s injury adversely affects plaintiff’s relationship with the third parties
Organizational Standing
- individual members have injury sufficient to grant them standing
- injury is related to the organization’s purpose AND
- neither the nature of the claim nor the relief requires participation of the individual members
Ripeness
Plaintiff asserts there is an immediate or imminent threat of harm (e.g., threat of prosecution if plaintiff sells particular publication without government approval)
Mootness
Controversy is capable of repetition and yet evading review (pregnancy, elections, divorce)
a live controversy must exist at all stages of review. if circumstances causing P’s harm cease to exist after P files suit, the case must be dismissed as moot
Political Question Doctrine
Fed. courts will not adjudicate certain constitutional issues that constitute political questions
i.e.,
constitution commits to another branch of govt or
are inherently incapable of judicial resolution or enforcement
Supreme Court Review
Discretionary review:
- most cases get to the US Supreme Court by writ of certiorari; the Court then decides whether to grant review
Mandatory Review:
- the Court must take appeals from three-judge district court panels regarding injunctive relief
Original and exclusive jurisdiction:
- suits between states and must be filed in the Supreme Court
11th Amendment
11th amendment and the related doctrine of sovereign immunity bar suits against state govts. in federal court
- under the 11th amendment, fed. courts cannot hear claims from a private party or foreign govt. against a state govt.
- sovereign immunity bars suits against states in state court
barred if:
- actions against state govt. for damages or injunctive/declaratory relief where the state is a party
- actions against state govt. officers where govt treasury has to pay or state land would be taken away
- actions against state govt. officers for violating state law
- actions contesting immunity of sister state under that state’s law
okay if:
- against state officer for injunctive relief claim for violation of the const. or fed. law or
- claim for money damages to be paid by the state officer personally
Necessary and Proper Clause
Congress can exercise constitutionally-enumerated powers and all auxiliary powers that are necessary and proper to carry out those enumerated powers
- enables congress to take any action not constitutionally prohibited to carry out its express powers
- constitutes Congress’s implied powers
(usually not the right answer for MBE)
Taxing and Spending Power
Congress may tax and spend in any way deemed necessary for the “general welfare”
- taxes must reasonably relate to revenue production
- tax is valid if reasonably related to revenue raising or Congress can regulate the taxed activity
i. e., individual mandate in affordable care act
Police Power
Congress has no general police power, except for legislation concerning:
- military
- indian reservations
- land
- district of columbia
Commerce Clause
Commerce clause gives Congress exclusive authority to regulate interstate commerce
- power to regulate intrastate commerce depends ont he nature of the activity
*look for a federal law in the fact pattern
Interstate Commerce
Between States
- congress may regulate channels, instrumentalities, or economic activities that have a substantial effect on interstate commerce
channels
instrumentalities
substantial economic effect on interstate commerce
Intrastate Commerce
Within States
Economic activities: Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce
Non-economic activities: Congress may only regulate non-economic activity if it has a direct, substantial economic effect on interstate commerce
10th Amendment Limits on Commerce Clause
Even if law is supported by Commerce Clause, is it barred by the 10th amendment?
coercion:
- requiring states to act in certain way
- imposition of substantial penalty for failing to act
commandeering:
- requiring state officials to act in aid of federal law without funding it
Dormant Commerce CLause
Limits state laws burdening interstate commerce
IT IS INVALID IF State or Local economic/business regulation that either:
1. discriminates against out of state competition to benefit local economic interests;
or
2. is unduly burdensome - the legitimate local benefits do not outweigh the incidental burden on interstate commerce
- identify the benefit to local interests in prong 1
- discuss BOTH the legitimate benefits and the burden in prong 2
Exceptions to Dormant Commerce Clause
- a discriminatory state or local law may be upheld if it furthers an important non-economic state interest AND there are no reasonable nondiscriminatory alternatives
- government agency is a market participant
- congress exempts state/local law from DCC (applies to both prongs)
- traditional public function
Article IV Privileges and Immunities Clause
Discriminatory state law will be invalid if it
- relates to civil liberties or commercial activities; and
- is not necessary to achieve an important government interest
Discrimination requires substantial justification for different treatment
- non-residents part of the problem
- no less restrictive means to solve the problem
- Always consider P & I if there is a dormant commerce clause issue
- 14th amendment privileges or immunities clause - primarily applies to restrictions on rights to interstate travel; narrowly construed and unlikely to be an answer choice
10th Amendment Limitations on Congressional Power
Under the 10th amendment, all powers not granted to the fed. govt., nor prohibited to the states, are reserved tot he states
limits congress’s ability to regulate and/or tax states alone
- exception: civil rights; congress may restrict state activities that violate civil liberties
Conditional Grants - congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants
- e.g., fed highway funds conditioned on states maintaining a minimum drinking age of 21
requirements:
- condition must be expressly stated
- condition must relate to the purpose of the law at issue; and
- condition cannot be unduly coercive
Congressional Delegation of Powers
Congress may delegate legislative powers to executive officers and administrative agencies
- administrative agencies established by congressional enabling acts can create rules that have the status of law
2 STEPS:
Does Congress have authority to regulate?
- applies to any enumerated power
- requires intelligible standards
- cannot delegate executive or judicial powers to itself or its officers
Does the agency regulation conform to Congress’ legislation?
Appointment and Removal Powers - President
Appointment powers:
Can appoint ambassadors, fed. judges, and other high level officers with advice and consent of Senate
Removal powers:
Can remove high-level executive offers
- Congress can statutorily limit President’s power to remove all other executive appointees
Appointment and Removal Powers - Congress
Appointment powers:
Congress cannot give itself appointment powers
- can vest power to appoint inferior officers in President, courts, heads of departments or agencies
- inferior officers means: usually those working under presidentially appointed officers
Removal powers:
Can only remove executive officers through its impeachment power
Art. III Judges cannot be removed “during good behavior”
Absolute Immunity
President has absolute immunity from civil suits arising from official actions taken while in office
- no immunity for actions occurring prior to taking office
Executive Privilege
Protects against disclosure of presidential papers and conversations
- important government interests in criminal cases can override the privilege
(e. g., Watergate)
Pardon Power
President has the power to pardon those accused or convicted of federal crimes (not state crimes)
- exception: president cannot pardon someone for convictions leading to impeachment
- president may also commute sentences
- Congress CANNOT limit President’s pardon power
Treaties
Agreements between the US and foreign countries negotiated by the President
- become effective upon ratification by 2/3 of the Senate
- conflicts: if a treaty conflicts with other sources of law, these rules control:
- conflicts with state law - treaty prevails
- conflicts with fed. law - most recent prevails
- conflicts with the Const. - Const. prevails
Executive Agreements
Agreements reached between the President and foreign heads of state
- can be used for any purpose
- no congressional approval is required
- conflicts: executive agreements only prevail over conflicting state laws
Supremacy Clause
Under the Supremacy clause, fed. laws trump conflicting state and local laws
Express Preemption
If a fed. law provides that it is the exclusive authority in a given area, it preempts state and local laws in that area
- however, preemption provisions are narrowly construed