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MBE 2021 > Con Law > Flashcards

Con Law Flashcards

1
Q

State immunity under 11th:

A

private citizens cannot sue in federal courts

(1) states (NOT local governments) for money or injunctions;
(2) state officials for violating state law

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2
Q

Exceptions to 11th Amendment

A

(1) CONSENT–state consents;
(2) OFFICIALS–money or injunctive relief against state officials © can’t sue for violating state law; or
(3) 13-15th–Congress authorizes to enforce 13-15th amendment rights–money damages permitted.

Not barred by 11th:

(1) against local govts
(2) P is U.S. or another state.
(3) bankruptcy proceedings that impact state finances

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3
Q

SCOTUS original JX:

A

all cases

(a) affecting ambassadors, public ministers, and
(b) cases where a State is a party.

Congress cannot modify this JX.

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4
Q

SCOTUS appellate JX:

A
  1. By cert (discretionary) and
  2. By direct appeal (mandatory).

Congress can limit this JX. © AISG

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5
Q

AISG

A

SCOTUS has no JX over a final state court judgment resting on an adequate and independent state ground.

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6
Q

AISG: adequate

A

Adequate when the state law fully resolves the matter.

(e. g. when the claimant asserting a federal right wins anyway under state law, not adequate).
(e. g. once the state court found that the ordinance violated the state constitution it becomes unnecessary to resolve the federal issue.)

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7
Q

AISG: independent

A

state law must not depend on an interpretation of federal law.

If state court decision turns on federal issue - then can review whether state court correctly decided the federal issue.

If state court decision unclear as to the basis of the decision - can review to see whether AISG or federal.

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8
Q

Standing:

A

requires injury, causation, and redressability.

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9
Q

Standing: Injury requirement

A

must be

(a) concrete and particularized (not abstract/merely ideological objection).
(b) actual or imminent

Individualized harm - prudential standing: may deny standing if generalized harm

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10
Q

Standing: Causation

A

P’s injury is fairly traceable to the challenged action

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11
Q

Standing: Redressability

A

A favorable court decision will LIKELY redress a discrete injury suffered by P (likely, not possibly)

Past injury—damages;
Future injury—only injunction

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12
Q

Standing: Redressability– to seek an injunction for past injury

A

must show that past injury will occur again.

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13
Q

Standing: taxpayer

Exception

A

A taxpayer can only challenge their own tax liability

© Establishment Clause challenge to specific congressional spending ©© The exception does not apply to executive spending

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14
Q

Standing: legislator

A

a legislator does not have standing to challenge laws they voted against

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15
Q

Standing: third-party standing

A

Generally can’t raise the rights of someone else, unless

© P can have standing if that

(1) third party is unable to assert own rights;
(2) P has a special relationship with 3rd party; or
(3) P’s injury adversely affects P’s relationship with 3rd party

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16
Q

Standing: organization

A

if (a) its members have standing and

(b) the interest at stake are germane to the organization’s purpose.

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17
Q

Justiciability: Ripeness

A

P must have suffered an actual harm or immediate threat of harm.

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18
Q

Justiciability: Mootness

A

Cases can become moot during trial or appeal, and are dismissed when moot.

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19
Q

Justiciability: Mootness 4 exceptions

A

Case is not moot if

(1) REPETITION–controversy is capable of repetition yet evading review (bc case won’t last long);
(2) CESSATION– D voluntarily ceases wrongful action upon commencement of litigation;
(3) COLLATERAL– challenged conviction can impose collateral legal consequences;
(4) CLASS ACTION – class action where P’s claim is resolved but not other Ps

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20
Q

Justiciability: advisory opinions

A

federal courts cannot give advisory opinions or rule on the constitutionality of proposed legislations

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21
Q

Justiciability: political question

A

A question is nonjusticiable if

(1) Constitution commits the decision to another branch of government or
(2) there are no judicially manageable standards for adjudication

©PQ doctrine doesn’t apply when state law is involved

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22
Q

Justiciability: 3 types of abstention doctrines

A

A federal court can abstain from deciding a claim when strong state interests are at stake.

  1. Pullman
  2. Younger
  3. Family law
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23
Q

Justiciability: Pullman doctrine

A

A federal court may refrain from ruling on federal constitutional claim that depends on an unsettled issue of state law

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24
Q

Justiciability: Younger doctrine

A

In the absence of bad faith, harassment, or a patently invalid state statute, a federal court will not enjoin

(1) a pending state criminal case or
(2) a civil enforcement proceeding/civil proceeding involving an order uniquely in furtherance of the state courts’ ability to perform their judicial functions, such as a civil contempt order.

(e.g. Pending criminal case: if D has not been convicted of a crime.
Civil proceeding: civil contempt order.)

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25
Commerce power:
Congress can regulate ∑ (a) channels of interstate commerce (power to make federal crimes) (b) instrumentalities of interstate commerce and (cars, trucks, etc (c) any activity that has a substantial effect on interstate commerce. e.g. CG can regulate employment conditions of all state gov employees
26
Commerce power: economic activity
Activity that is economic in nature is presumed to have a substantial effect on IC.
27
Commerce power: aggregation exception
Congress can regulate intrastate economic activity if the aggregate activity of everyone doing the same has an effect on interstate commerce. © cannot aggregate if noneconomic activity. must show substantial effect on IC.
28
Taxing power
Congress can tax if if rationally related to raising revenue.
29
Taxing power: Export Taxation Clause (Art 1)
Congress may not tax goods exported to foreign countries.
30
Taxing power: direct tax
No “. . . direct tax shall be laid, unless in proportion to the Census[.]” = include direct real property tax.
31
Spending power
Congress can spend for the general welfare.
32
Elections Clause
Congress can override state laws concerning federal elections.
33
Origination Clause
bills that raise revenue must originate in the House rather the Senate.
34
Federal Property Clause
Congress can dispose of federal property however they want
35
Congress power: 13th Amendment
Congress can legislate against public and private racial discrimination.
36
Congress power: 14th Amendment
Under the Enabling Clause, Congress can remedy government violations of individual constitutional rights . © Congress cannot define those constitutional rights
37
Congress power: 14th Amendment--requirement for remedial law
Remedial law must be congruent and proportional: there must be a reasonable fit between the remedial law and the rights.
38
Congress power: 14th Amendment--who can be regulated
Congress can only regulate state action, NOT private individuals
39
Congress power: national guard
CG can authorize Pres to call National Guard units to execute federal laws, suppress insurrections, and repel invasions. This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances. This authority is not subject the approval or veto of the governor of a state.
40
President’s powers that are not subject to statute:
pardon power, veto power, appointment and removal of executive officers
41
Executive veto power
have 10 days to veto legislation © no pocket veto. Congress can override a veto with 2/3 majority vote of each house.
42
Executive veto power: Silent veto
If President does nothing for 10 days and CG has adjourned at the end of 10 days, bill does not become law.
43
Who has the power to appoint executive officers
Only the President
44
Executive officers definition
anyone who takes action on behalf of the U.S. members of a body with administrative OR enforcement powers.
45
Congressional delegation of executive power:
Congress cannot give executive power to legislative officers under legislative control.
46
Congressional delegation of executive appointment power
cannot delegate appointment authority it does not have. © Congress may, however, delegate the appointment of “inferior” officials to the President alone “Inferior” officials are those supervised by Senate-confirmed appointees
47
“Inferior” officials definition
are those supervised by Senate-confirmed appointees
48
Congressional delegation of legislative power
Nondelegation doctrine: Congress can delegate its power to administrative agencies as long as there are intelligent principles governing the exercise of the delegated power.
49
Treaties vs. Executive agreements
Treaties require ratification by 2/3 Senate approval to become binding as a statute. Executive agreements do not require Senate approval. They take precedence over conflicting state laws.
50
Executive immunity
President absolute immunity from liability for official acts.
51
Judicial immunity
Judges have absolute immunity for all judicial acts - even if acted with malice.
52
Legislative immunity
Legislators and their aides: no civil or criminal liability for statements and conduct made in the regular course of legislative process.
53
Federal immunity against state taxation:
States cannot tax federal government and its instrumentalities (such as a national bank chartered by the federal government) © generally applicable indirect tax that does not unreasonably burden
54
State immunity against federal government
Federal government can directly regulate states
55
Anti-commandeering:
Congress cannot force states to adopt or enforce regulatory programs © can do so through conditional funding or enforce with federal officers
56
Congressional conditional funding of states ∑5
A condition must be for (a) general welfare, (b) be unambiguous, (c) relate to federal interest in a particular national program, (d) not induce states to act unconstitutionally; and (e) not exceed the point at which “pressure becomes compulsion”
57
P&I under Art 4 (Comity clause)
States cannot discriminate against out-of-state individuals (not corporations) with respect to fundamental rights or essential activities.
58
P&I clause: fundamental rights or essential activities
employment, transfer of property, access to state courts, and engaging in the political process. (e.g. States cannot require residency for private employment)
59
P&I clause: exception to discrimination
Discrimination may be valid if there is a substantial reason for the difference in treatment. Substantial reason exists if ∑2 (a) nonresidents cause or are a part of the problem state is trying to solve; and (b) theres no less-restrictive means.
60
P&I under Art 4 does not apply to
1. corporations | 2. in-state citizens
61
Dormant Commerce Clause
In the absence of federal regulation, state can regulate commerce as long as (a) there is no discrimination against out-of-state interests; or (b) regulation does not unduly burden interstate commerce; or (c) regulation does not apply to wholly extraterritorial activity.
62
Dormant Commerce Clause: discrimination exists when
State can discriminate on its face OR by its impact
63
Dormant Commerce Clause: important local interest exception
If discriminatory, state must show (a) it serves an important local interest; and (b) there is no other nondiscriminatory means available to achieve the interest. e.g. upheld: prohibition against importation into the state of out-of-state live baitfish that may pose contamination hazards to local waters
64
Dormant Commerce Clause: state can discriminate if (5 situations)
State can discriminate if (1) market participant; (2) subsidies; (3) federal approval. (4) important local interest (5) traditional government function
65
Dormant Commerce Clause: undue burden 3 factors balancing test
Undue burden 3-factor balancing: (1) purpose and benefit of the state law against the (2) burden on interstate commerce and (3) evaluate whether there are less restrictive alternatives. If the benefits of the state law are grossly outweighed by the burdens on interstate commerce, then even nondiscriminatory regulation may be struck down.
66
Test for state nondiscriminatory taxation of interstate commerce
Nondiscriminatory taxation is valid if (a) there is a substantial nexus between the state and the property/activity being taxed; and (b) there is a fair apportionment of tax liability among states. substantial nexus exists when the thing being taxed has a substantial activity in state (e.g. delivery of goods) fair apportionment exists when state taxes portion equivalent to in-state use/revenue.
67
State’s ad valorem tax on commodities of IC
can impose tax on commodities when goods are stopped for a business purpose, not when they are merely passing through
68
State’s ad valorem tax on instrumentalities of IC
State can tax the value of instrumentality as long as (a) substantial nexus and (b) fair apportionment
69
State power under 21th Amendment
States can prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state. © The right to regulate the distribution of alcohol is subject to the Dormant Commerce Clause.
70
Supremacy Clause presumption
If state law conflicts with federal law, federal law governs. Presumption that a federal law does not preempt state law unless Congress expressly states otherwise.
71
Express preemption
State law is invalid it legislates in the area where (1) Congress has exclusive power or (2) Congress enacted law explicitly forbidding state regulation © statute has a savings clause
72
Implied preemption:
implied preemption occurs when (1) Congress preempts the field or (2) state law directly conflicts with federal law (impossible to comply with both) or (3) state law indirectly conflicts with the federal law (state law creates an obstacle to the federal law’s purpose)
73
Contracts Clause
States cannot pass legislations that substantially impair existing contractual rights, unless the interference was (a) reasonable and (b) necessary to serve an important governmental interest.
74
bill of attainder
a legislative act that inflicts punishment on named individuals or on easily identifiable members of groups. (e.g. if statute proscribes a type of conduct when engaged in by anyone, it is not a bill of attainder).
75
Ex post facto law:
unconstitutional to expand criminal liability retroactively, by (1) NEW CRIME-- by creating new crime that applies to past conduct or (2) NEW PENALTY-- by increasing penalty for the past conduct (3) NO DEFENSE-- by depriving D of a defense available when the act was committed; or (4) LESS BURDEN OF PROOF-- by decreasing prosecution’s burden of proof than when the act was committed.
76
Can CG regulate employment conditions of all state gov employees
yes under commerce power
77
Enabling Clause of the 14th Amendment (Section 5)
permits Congress to pass legislation to enforce DP and EP right under 14th as long as as long as there is "congruence and proportionality" between the injury to be prevented or remedied and the means adopted to achieve that end.
78
Legislative veto:
like having an option to revise/repeal regulations.
79
Conditional spending and restraint on freedom of speech
A grant can be made contingent on a condition that a recipient refrain from endorsing a particular view. Congress may even select recipients based on what views they hold. © cannot force a recipient to adopt a view as their own in order to obtain funds they would otherwise be entitled to.
80
Dormant Commerce Clause: traditional government function exception
state may favor local government entities (NOT private entities) when those entities are performing a traditional governmental function, such as waste disposal. e.g. can require all trash haulers to deliver to a local public waste-treatment facility, but not to a local private facility; can issue income tax exemption for income earned on state and local bonds, but not out-of-state bonds

MBE 2021 (17 decks)

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