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Law (Fall 2021) > Con Law I > Flashcards

Con Law I Flashcards

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1
Q

Where does the SC have original jdx?

A

Under Article III, Section 2, the United States Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and in which a state is a party.

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2
Q

Justiciability Limits:

A
  1. Prohibition against advisory opinions
  2. Standing
  3. Ripeness
  4. Mootness
  5. Political question doctrine
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3
Q

Standing requirements:

A
  1. Injury (Distinct, palpable, actual, direct, personal)
  2. Causation (contributing cause is fine)
  3. Redressability (Incremental counts! EPA case)
  4. No third party claims
  5. Can’t sue as citizen or taxpayer
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4
Q

Tools of Interpretation

A 
History
Text
Structure
Precedent
Policy
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5
Q

Gibbons v Ogden

A

Congress can control channels

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6
Q

NLRB v Jones & Laughlin Steel Corp

A

Manufacturing is a part of commerce, rejects Formalist distinction. Substantial effects test.

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7
Q

Wickard v Filburn

A

Wheat aggregation case, like Raiche.

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8
Q

McCulloch v Maryland

A

Rational basis test birth

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9
Q

Exceptions to Standing Requirements Third Parties

A
  1. If the plaintiff has a close relationship to the third party, allowing the claim might be justified
  2. Third-party unlikely to be able to bring the claim for themselves
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10
Q

Exceptions to Standing Requirements General Grievances

A

Flast v Cohen: A taxpayer does have standing to challenge congresses exercise of its spending or taxing IF the claim is that it violates the Establishment Clause (government shall not establish religion).

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11
Q

Ripeness Factors

A
  1. Hardship plaintiff will suffer without pre-enforcement review
  2. Fitness of the issues in the record for judicial review
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12
Q

Mootness Exceptions

A

If plaintiff injury ends then case ends EXCEPT:

(1) capable of repetition but evading review; (2) voluntary cessation by the D (with the risk of re-starting the behavior after dismissal of the suit); and
(3) continuing with class action when named P has been mooted.

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13
Q

Principles of avoidance

A
  1. If there’s case law that can decide a case, don’t get to a federal question
  2. If there’s independent state law that can solve the case, the SC shouldn’t hear it.
  3. If there’s an adequate and independent state ground, shouldn’t get to federal question
  4. If the court can decide the case with interpreting federal statute, it should avoid the broader constitutional question.
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14
Q

Congress reviewing judiciary?

A

Congress regulating case results is judicial action. NOT ALLOWED.
But, if amending the law:
That is legislative. ALLOWED.
Authorizing executive to review judicial decisions?
NOT ALLOWED.
Congress ordering the judiciary to re-open final decisions.
NOT ALLOWED.

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15
Q

City of Los Angeles v Lyons

A

No standing to sue the city because a chokehold may or may not happen again in the future

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16
Q

Massachusetts v EPA

A

Incremental relief is ok for redressability in standing

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17
Q

Federal Power Analysis Framework:

A
  1. Authority: Does congress have express or implied authority to act?
  2. Violation: Even if they have authority, has it violated constitution or other provision or doctrine?
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18
Q

Rational Basis Test

A
  1. ENDS have to be legitimate and the

2. MEANS have to be appropriate, plainly adapted to achieve the ends.

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19
Q

The Necessary and Proper Clause

A

Congress has power to use any means, not prohibited by the constitution, to carry out its authority (ends).

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20
Q

Police Power

A

Congress does not have the power to legislate for the general welfare-there is no federal police power-but rather Congress has the power to spend for the general welfare.

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21
Q

Substantial Effects test

A

Rational basis
Must look to the EFFECTS upon commerce, not the source of the injury, which is the criteria.
Even if activities are intrastate in character, if they have such a close and substantial relationship to interstate commerce that their control is essential and appropriate to protect that commerce, congress cannot be denied the power to access that control.

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22
Q

Aggregation principle

A

You don’t look at EACH person, you look at the AGGREGATE effect.

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23
Q

Congress’ Commerce power includes

A
  1. Channels
  2. Instrumentalities (goods or people)
  3. Activities (substantially affecting)
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24
Q

Perez Test on Commerce Power

A

Congress is not mandated to make specific findings

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25
Q

Lopez Factors

A
  1. Economic in nature?
  2. Part of a larger economic scheme?
  3. Jurisdictional Element?
  4. Whether Congressional findings show substantial effects on interstate commerce
  5. Links too attenuated?
  6. Federalism
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26
Q

Tenth amendment restrictions

A

Principle of federalism
NY case: Commandeering legislature regulation.
Printz: Commandeering executive branch

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27
Q

Anti-Commandeering Doctrine

A

Prohibits the federal government from commandeering state governments: more specifically, from imposing targeted, affirmative, coercive duties upon state legislators or executive officials.

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28
Q

Taxing and Spending Powers

A

Can spend for the general welfare, can use sticks and carrots (Butler)
Tax = Functionally raise revenue and Spend for the general welfare.
Spending has to be for general welfare

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29
Q

Dole Rules for spending conditions:

A
  1. Exercise of spending power must be in pursuit of general welfare
  2. Unambiguous conditions
  3. Conditions must be “germaine”
  4. No violation of any other Constitutional provision (AKA NO COMMANDEERING 10th Amendment)

If too coercive, violates federalism

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30
Q

Bribery With Federal Money

A

Federal money is often mixed, so just because they can’t PROVE federal money was used in the bribe doesn’t mean they have no authority. (Sabri)

Think of the water tank with a hole

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31
Q

What can Congress regulate 13th Am

A

Limited to abolishing government action or private action that constituted the “badges and incidents of slavery”
Exception: 13th Am can be used to prohibit private racial discrimination in property transactions

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32
Q

What can Congress regulate 14th Am

A

Limited to “state action” (meaning government action). 14A can’t regulate private action.
Two Exceptions:
Public Function Exception
Entanglement Exception

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33
Q

14th Am on Private entities exception:

Public Function Exception

A

Private entity must comply with Constitution if performing task traditionally, exclusively done by government.

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34
Q

14th Am on Private entities exception: Entanglement Exception

A

Private entity must comply with Constitution if government has authorized, encouraged, or facilitated the entity’s conduct

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35
Q

Saenz, 14th Am P&I, does these:

A
  1. Allowing citizens to move freely between states,
  2. Securing the right to be treated equally in all states when visiting, and
  3. Securing the rights of new citizens to be treated like long-time citizens of a state.
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36
Q

Katzenbach Test

A

Broad test, Congress has the same broad powers expressed in N&P (appropriate legislation under McCulloch standard). RATIONAL BASIS on which Congress may resolve the conflict

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37
Q

City of Boerne Test

A

Congress can:

  1. Remedy or deter likely constitutional violations BUT
  2. Must be a congruence and proportionality between the injury to be remedied and the means to that end

Need clear statement of abrogation for lawsuits against states

(Congress can’t directly overrule an SC decision, but they can go farther than the courts as long as congruent and proportional)

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38
Q

Three Shared Powers (Executive and Legislative)

A

Impeachments, Appointments, Treaties

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39
Q

Take Care Clause for Executive

A

He shall take care the laws are faithfully executed

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40
Q

Youngstown Sheet Test

A
  1. President and Congress agree on what to do.
    Maximum presidential power
  2. Congress silent: President can only use his own independent powers
    »>totality of circumstances«<
  3. President acts in defiance of express will Congress
    “Remainder powers” = what’s left after removing Congress powers
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41
Q

Nixon Standard

A

What’s the

  1. need for executive privilege vs.
  2. the need for regular old evidence in a criminal trial?
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42
Q

Congress Investigating the President Factors (Trump v Mazars):

A
  1. Can they reasonably get the information elsewhere?
  2. Is the subpoena no broader than reasonably necessary?
  3. What evidence does Congress have that they need the information?
  4. What burden does this pose on a sitting president? (more than just time and attention Clinton)
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43
Q

State grand juries can subpoena president? T/F?

A

True

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44
Q

Presidential Immunity when:

A

Immune from actions while taken during presidency in official capacity

No immunity for actions in 1. unofficial capacity or 2. before presidency,

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45
Q

Non delegation doctrine rules

A
  1. Congress must set standards, can’t be “unfettered” discretion.
  2. Congress has to set the policy standards, and then others may make subordinate rules within prescribed limits

Intelligible principle

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46
Q

Intelligible Principle

A

Required for delegating powers. Discernible or identifiable principle, a principle that can be seen and guide

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47
Q

Legislative Limits

A
  1. No line item veto
  2. Minimal non delegation doctrine
  3. No legislative veto (“one house veto”)
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48
Q

Legislative veto

A

Court says legislative if “legislative in purpose or effect”: Alters the legal, rights, duties of those outside the legislative branch

Bicameralism and presentment required

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49
Q

Principal Officers

A

Must be appointed by the President with the advice and consent of the Senate.

  1. President nominates
  2. Senate confirms
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50
Q

Inferior Officers

A

Inferior officers may be appointed by the President or by a department head, without Senate approval.

Subject to President’s authority

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51
Q

Recess Appointment Rules

A

President alone can fill up seats during Senate vacancy Recess Appointment
Granting commissions which expire at the end of the congressional session
1. Any kind of recess
2. Can fill seats during or before recess
3. Recess must be at least 10 days to use power

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52
Q

FACTORS: Principal vs Inferior (morrison)

A
  1. Look at removal (how were they removed?)
  2. Duties are limited?
  3. Limited Jurisdiction?
  4. Limited Tenure?
53
Q

Exceptions for Removal by Pres

A
  1. Humphry Exception (FTC)
    Multimember expert agencies that do not wield substantial executive power.
    Commission is supposed to be non-partisan
    It’s “quasi judicial” and “quasi legislative”
  2. Morrison Exception (Independent Counsel)
    Inferior officers with limited duties and no policymaking or administrative authority
54
Q

Removal for president

A

President allowed to remove people who are purely executive in function (Myers)
The entire executive power belongs to the president alone (Seila)

55
Q

Foreign Affairs Standards

A

One voice

Broad range of powers

56
Q

Recognition Power President

A

Executive can recognize sovereigns
Broad power
If exclusive, then Congress is not allowed to contradict

57
Q

Recognition Power Congress

A
  1. Congress can handle naturalization and immigration
  2. Passports too
  3. President is superior and therefore can’t be contradicted.
58
Q

Treaties and Agreements Rules

A
  1. Treaties cannot violate inherent constitutional rights
  2. Treaties are self-executing, immediate force of law without any further implementation
  3. Or, Non self-executing. Negotiate treaty, ratify it, not enforced until implemented with federal legislation in congress
  4. Default is non self-executing, treaty needs to say it is self-executing.
59
Q

Mathew v Eldridge Balancing Test (Hamdi)

A

For due process during war

  1. Private interest (nature of, and how strong is it)
  2. Government interest (how strong is it)
  3. Risk of error under current procedures compared to the value of added procedures. (could add notice and fair hearing)
60
Q

National Security

A

Only needs a rational basis

61
Q

Limits on States

A
  1. Preemption
  2. DCC
  3. P&I
62
Q

Explicit preemption factors

A
  1. What did it preempt exactly?

2. Did the government set a floor or ceiling?

63
Q

Implied preemption types

A
  1. Conflict (conflicts with federal law)
  2. Obstacle frustration (not total conflict, but stands as obstacle to federal law)
  3. Occupation of field (congress fully occupies a field, no room for state regulation)
64
Q

States can go beyond the courts for:

A

States can go beyond the courts for safety and environmental reasons

65
Q

The General Police Power

A

To regulate the 1. health, 2. safety, 3. welfare, and 4. morals of the people.
States have this power intrinsically.
Feds do not have this power in the constitution.

66
Q

How to spot Dormant Commerce Clause

A
  1. Congress has not acted is key a question about DCC.
  2. Did states go too far in making a law that burdens interstate commerce?
  3. If you’re Balancing the benefits of a law versus the burden it imposes on interstate commerce.
67
Q

Under DCC, if law is Protectionist only then:

A

Test: virtually per se invalid if only protectionist

BUT remember the Minnows case vs Nuclear waste

68
Q

Under, DCC if law discriminatory, Burden on state/local has to show:

A
  1. No less discriminatory alternative (means)(narrowly tailored)
  2. To serve legitimate end/purpose
69
Q

Addressing If no IN-STATER BURDEN:

A

Very fact dependent
Can you argue out of staters benefit? Can you argue in-staters are burdened?
No state protectionism!

Don’t be “Out of step” with neighboring states (Bibb)

70
Q

Exceptions to the Dormant Commerce Clause

A
  1. Congress approve the state law. Even a clearly unconstitutional, discriminatory state law will be allowed if approved by Congress because Congress has plenary power to regulate commerce among the states.
  2. “Market participant exception”
71
Q

Use High scrutiny in commerce when law is:

A

Protectionist: Blatantly and only trying to protect its own citizens at the expense of everyone else economically.
Discriminatory: Plausible reason for doing so

72
Q

Balancing test in state affecting commerce:

A

Non-discriminatory: May still be struck down if it still imposes an undue burden on interstate commerce.
Interstate burdens > local benefits.

73
Q

Discrimination Types for P&I and DCC

A

Face: Obvious on face
Purpose: Look to stated purpose
Effect: tough one, who has benefited? And who is burdened? In-staters and out-of-staters (four square chart)

74
Q

Art. IV Privileges and Immunities Clause Factors

No state discrimination against out-of-staters regarding two things:

A
  1. Fundamental rights
  2. Economic activity (ability to earn livelihood)

Need substantial end and substantially related means to do so.

75
Q

Identifying Art IV P&I

A

Looking for a state making it harder for out of staters to earn money in that state for Art IV.

76
Q

Identifying 14th Am P&I

A

Look to Saenz (“a state cannot discriminate against new residents”). That’s it.

77
Q

Incorporation doctrine

A

Can sue for fundamental rights in a state via 14th amendment. Use Liberty to apply to 5th amendment and apply to government.

78
Q

14A Rights

A
  1. P&I (only Saenz)
  2. Due Process
    - -procedural (ie criminal law, notice, etc)
    - -substantive (usually giving substance to “liberty”)
  3. Equal Protection
79
Q

Section 5 of 14 Am

A

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

80
Q

When to do a Privileges and Immunities Analysis and first step and what it applies to

A
  1. Has the state discriminated against out of staters with regards to privileges and immunities that it accords its own citizens?
  2. If there is such discrimination, is there sufficient justification for the discrimination?

P&I Clause only applies to FUNDAMENTAL rights, of which big game hunting is not one (Montana)
Being a lawyer is a fundamental right (Piper)

81
Q

How to apply EP analysis to Discrimination, types of discrimination and what to do

A
  1. Is the law discriminatory on its face? Apply chart
  2. If not facial, can you convince the court that it was intentional? If so, use the heightened scrutiny
  3. If not, must show that there is disparate impact and show it was not rationally related to any conceivable legitimate ends.
82
Q

Prejudices as basis for the law ok?

A

Racial prejudices cannot be a basis for the law (Sidoti)

83
Q

When you see Disparate Impact what Analysis

A

Apply rational basis. Burden on the challenger.

  1. Intent standard requires disparate impact to be intentional outcome for stricter
  2. If law is facially discriminatory, also need disparate impact to get stricter
84
Q

Evidence needed for Discriminatory Purpose (Arlington Heights/Feeney)

A
  1. Disparate impact data
  2. Historical background
    a. Pattern/series of actions
    b. Sequence of actions
    c. Departure from normal procedural or substance based behavior
  3. Legislative history (statements, intent)
85
Q

Affirmative Action Analysis

A

Only NARROWLY TAILORED MEANS

Affirmative action → Strict for STATE/LOCAL

Strict scrutiny to FEDERAL affirmative action too

Race can be considered but, no quotas
Tax dollars can help racism making it a non-private issue

86
Q

Bolinger test for affirmative action

A
  1. “Critical mass”, not racial balancing

2. No mechanical numerical valuation of diversity

87
Q

Fisher I controlling principles educational affirmative action

A

(1) The program must be able to withstand strict scrutiny, or be able to demonstrate that the use of the classification is necessary;
(2) pursuing substantial benefits from a diverse student body is a proper academic judgment; and
(3) the university bears the burden of proving race-neutral approaches do not suffice to achieve the goal

88
Q

Strict Scrutiny (Fully Suspect Class)

A
  1. ACTUAL PURPOSE is Compelling (Tight tailoring)

2. Strict (Necessary/Least Restrictive & Narrowly tailored) (NO LESS RESTRICTIVE ALTERNATIVE)

89
Q

Intermediate Scrutiny (Quasi-suspect class)

A
  1. ACTUAL PURPOSE is IMPORTANT(Middle tailoring) (No stereotyping)
  2. Substantially related
    “Exceedingly persuasive justification”
90
Q

Ends and means for Rational (Non-suspect class)

A
  1. ANY CONCEIVABLE PURPOSE that is Legitimate (Loose tailoring)
  2. Rational
91
Q

US v Carolene Products Co. (footnote 4)

A

Court is suspect when laws passed which harm “discrete and insular” minorities

92
Q

Frontiero Factors (Suspect Class)

A
  1. History of discrimination, including stereotyping
  2. Political powerlessness or underrepresentation in the political arena
  3. Immutability (unchangeable)
  4. Irrelevance to individual ability (No relation to ability to conform or contribute to society)
93
Q

Pregnancy Classification

A

Rational by constitution

94
Q

Immigration Discrimination Analysis

A
  1. Congress or President: Rational basis
    a. Unless, agency being used has nothing to do with immigration.
  2. State or local: Strict
    a. Exception: unless about self-government and the democratic process. (teachers, police, parole officers, elections)
95
Q

Undocumented Persons Classification

A

Rational basis (can go to school due to Plyler v Doe)

96
Q

Nonmarital Children Classification

A

Intermediate scrutiny

Laws that provide benefit to Nonmarital Children: If you see some nonmarital kids can get benefits, might get it depending on facts.

97
Q

Equal Protections Analysis When:

A

EP analysis requires strict scrutiny only when the classification interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.

98
Q

Disability Classification

A

Rational basis with bite
Irrational fear of a group is not a government reason to discriminate
Mental retardation just need clear and convincing evidence
Mental illness, then you need higher proof beyond a reasonable doubt to be civilly committed

99
Q

Wealth Classification

A

Rational basis

100
Q

General Classifications for Scrutiny (Who is in what category):

A

Strict: Race and “alienage” (minus exceptions)
Intermediate: Sex and nonmarital children (maybe undocumented children)
Rational: Age and disability (also likely wealth but not squarely decided)

101
Q

Feeny vs Arlington Rules

A

Feeny: Prove that gov took that action at least in part because of its adverse effects on the group.

Arlginton: What evidence works

102
Q

Can Congress prohibit constitutional violations even if conduct is not unconstitutional?

A

Legislation which deters or remedies constitutional violations can fall under Congress power even if it prohibits conduct which is not unconstitutional

103
Q

EP analysis framework (What do we do with an EP question)

A
  1. Do we know the level of scrutiny? If we know, then apply. If we don’t, apply suspect class factors. (Frontiero)
  2. Is it facial or intentional? Apply proper scrutiny Only disparate impact? Apply rational basis
  3. Gather evidence, can you show they took action at least in part of the adverse effects on the affected group?
104
Q

DCC and P&I Framework:

A
  1. Is the law only protectionist? Virtually per se invalid
    a. But if state has reason (non-protective) Higher discriminatory standard
  2. Law not only protectionist but mucks up free flow of commerce?
    a. Undue burden balancing test
105
Q

Three things Congress typically does to address society problem:

A
  1. Prohibit, federal crime
  2. Spend money to influence decisions
  3. Authorize us to bring lawsuits against states
106
Q

11th amendment Exceptions

A
  1. Lawsuits against state officials, so long as not bringing it against state to get damages from the state treasury.
  2. States can waive immunity and consent to be sued (ie as condition for funds)
  3. Legislation that’s passing is within its authority of Section 5 of the 14th amendment
107
Q

Due Process Clause Description

A

No person shall be “deprived of life, liberty, or property without due process of law.”

Incorporates bill of rights into Liberty

108
Q

Executive Privilege

A

Applies to civil proceedings, but it’s weaker. President has a constitutionally based claim over official records where there’s a need for confidentiality. Official white house records start with a presumption of some executive privilege, but it was outweighed by a need for criminal evidence in the Nixon case. In Civil cases, the need is less.

109
Q

If an activity is economic or part of a larger economic scheme of regulation

A

then the Court can aggregate and would likely find that Congress is rationally regulating an activity that substantially affects interstate commerce. This is, as we discussed, essentially the same as the broad approach.
If it ISN’T economic or part of a larger regulatory scheme of economic activity, then the Court will not aggregate and will proceed with the other Lopez/Morrison factors, which is the narrow approach that is much tougher on Congress.

110
Q

executive agreement

A

Stronger version of treaty exclusively prez I think

111
Q

intergovernmental immunity

A

State and local governments cannot tax or regulate the activities of the federal government.

112
Q

How to defeat non-suspect class discrimination

A

Show no rationally related means (ie. only created to harm the non-suspect class)

113
Q

15th amendment

A

Right to vote shall not be denied on account of race.

Section 2: Power to enforce

114
Q

Political Question Doctrine Factors

A
  1. Resolution of Constitution to a coordinate branch of government?
  2. Resolution mean move beyond areas of judicial expertise?
  3. Do prudential considerations counsel against judicial intervention?
115
Q

Not justiciable political q’s:

A

Guaranty clause
Impeachment
Foreign Policy
Partisan gerrymandering

116
Q

10th amendment commandeering exception for market participants case

A

Reno v Condon, can regulate as market participants

117
Q

NRLB rule for affecting commerce

A

where the court determined that things affecting commerce could be constitutionally
regulated (JURISDICTIONAL ELEMENT)

118
Q

Jurisdictional Element

A

when congress limits reach of statute to things each case with an actual link to interstate commerce

119
Q

Attenuation

A

Focus on whether a possessed instrumentality (like in Lopez) vs purchased instrumentality

120
Q

Sebelius

A

100% of funds for Medicaid expansion, too coercive

121
Q

Necessary and Proper

A

Reasonably adapted

Legitimate ends

122
Q

Bakke case

A

Affirmative action, diversity is a compelling interest in education

No quotas under Gratz

123
Q

Federal Affirmative Action

A

Strict scrutiny

124
Q

Gratz v Bolinger

A

Not narrowly tailored, no quantitative tests like adding points

125
Q

Feeney case

A

Veterans in office is a legitamite and rationally related goal. Only disparate impact

126
Q

Arlington Heights use (not factors)

A

Third party standing for black home
Buyers who would be injured

Need to show intention, court found none here

127
Q

Foley case

A

Alien applied for New York State Trooper

Denied as historical power for states to control political institutions.

Rational basis

128
Q

Anti Commandeering doctrine. Can’t make states:

Exceptions:

A 
Congress can’t commandeer the states:
To enact fed policy (NY v US)
To administer fed policy (Printz)
BUT see Reno:
Congress directly regulating data (commerce clause)

Law (Fall 2021) (6 decks)

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