Con Law - Bar Prep Flashcards
Judicial Power (Overview)
Art. III - Limited by “Actual Cases and Controversies” (Doctrine of Justiciability: What it requests [no advisory opinions]; When it is brought [ripe and not moot]; and Who brings it [person must have standing].
*NOTE: Federal court review limited by: Political Question, SI, and abstention
“What” - No Advisory Opinions
Need:
1) Actual Dispute (two adverse people on ea. side of the “v”)
2) Legally binding effect of the decision
*Declaratory judgments are binding –> Check for mootness/ripeness
“When” - Ripeness & Mootness:
Ripe = Too early - Pre-enforcmenet review of laws (declamatory judgment actions) are generally not ripe unless: (1) Substantial hardship in advance of review, and (2) issues and record are fit for review (Abbot Labs)
Mootness = Too late - Federal courts may only decide “live” controversies (P is suffering ongoing injury).
NEED:
(1) In a suit for declaratory and injunctive relief, challenged law or conduce that continues to injure
(2) In a suit for damages, P not made “whole” (i.e. there has been no settlement)
EXCEPTIONS (i..e NOT moot):
1) Injury is capable of repetition yet evades review bc of limited duration (abortion)
2) Defendant voluntarily stops challenged activity, but may restart at will, OR
3) In class action only ONE P suffers ongoing injury
Examples and Exceptions of Standing:
Examples (ideological objections or generalized grievances as a citizen or TP):
- Citizen may not sue to force government to obey laws
- TP may not sue over hoe gov. spends tax resources
- Official proponents of ballot initiative may not defend enacted measures
Exceptions:
- TP challenge on their OWN TP liability
- Congressional spending in violation of the Est. Clause (NOT executive spending)
Third Party Exceptions to Standing
The injury must be personally suffered by P, rather than those not before the court – No third party standing unless:
Close realtionship ( P injured, 3P not likely or unable to bring suit, P can adequately represent)
Associational/Organizational Standing (Members have standing, Germane to interest of the org, Members’ participation not required)
Free Speech Overbreadth (party who’s speech can be censored sues on behalf of those whose speech cannot): (Substantial overbreadth in terms of laws’ legit to illegitimate sweep; not commercial speech).
Legislative Standing
Legislators may challenge acts that injure them personally (nullifies your vote) rather than the legislature generally (line item)
Political Questions Doctrine
Federal courts won’t decide a political question (committed by the Constitution to the political branches of government, or incapable of, or inappropriate for judicial resolution)
Examples:
- Guarantee Clause (challenges to “republican form of gov’)
- Foreign Affairs (challenges to Pres’s conduct of foreign policy and command decisions)
- Impeachment Process (challenges to procedures used)
- Partisan Gerrymandering (challenges to drawing election districts on partisan basis)
- Qualifications of Members of Congress (judged instead by fellow members of Congress)
- Seating of Delegates at national convention
Exceptions to SI
Barred unless:
1) Waiver
2) P is another state or the federal gov.
3) Bankruptcy proceedings
4) Clear abrogation by Congress under 14th Amendment to prevent discrimination
Not barred:
State Actors/Officers
1) Injunctive relief
2) Money damages from own pocket
Local Governments
(Sames as above)
Independent and Adequate State Grounds (IASG):
SC will not review a federal question if the state court decision rests on an independent or separate (not based on federal case interpretations that could change) and adequate or sufficient (fully dispositive of the case) state law grounds.
- IASG exists if the outcome would be the same regardless of how the federal question is decided
Legislature/Congress Enumerated Powers
Citizenship Bankruptcy Federal Property Patents and Copyright Post Offices Coining Money Territories and DC (General PO powers - federal land, indian reservations, D.C.) Declaring War Raising and Supporting Armies Providing and Maintaining Navy
Congress may regulate commerce with _____
1) Foreign Nations
2) Indian Tribes
3) Among States***
Interstate Commerce Includes:
1) Channels of IC: Hwys, waterways, telephone lines, internet
2) Instrumentalities of IC: Planes, trains, cars, persons in interstate commerce
3) Substantial Effect (on IC in aggregate - even purely local activities): If everyone grew their own wheat
LIMITS:
1) Non economic activity in the area traditionally regulated by states
2) Compel participation in commerce (even if lack of participation substantially effects IC).
3) 14A Enforcement Power: Congress may seek to prevent and remedy state discrimination under its 14A power to enforce equal protection (Congress can authorize suits against the state governments for employment discrimination (example)).
Treaties
President negotiates; 2/3 senate must approve; trumps existing and future state laws; trumps existing federal laws (but not future)
Executive Agreements
President negotiates; no senate approval needed; trumps existing and future state laws; no effect on federal law
Preemption (In General)
Express - Congress says so
Implied:
1. It’s impossible to follow both state and federal law; or state law impedes federal law
2. The federal government didn’t expressly say but the heavily regulated area makes it clear that Congress intends to “occupy the field.”
- States can be “tougher than the rest (i.e. fed laws)”
Dormant Commerce Clause
States cannot make laws that discriminate or unduly burden IC.
- All out of staters are protected (including corp. and aliens)
TEST: Discriminatory laws: favoring in state vs. out of state commerce are presumptively invalid UNLESS:
1) They are necessary to achieve an important government function (unrelated to the economy) and
2) There are no less discriminatory alternatives
EXCEPTIONS: Congress gives states approval or the state is a market participant (the state is buying or selling)
TEST: Non Discriminatory laws (evenly applied to in state and out of state commerce) are usually okay unless the burden on IC clearly outweighs the non-protectionest benefits
cf. - Privileges and Immunities of Art. IV - mutually reinforcing
