Con Law (Judicial System, Separation of Powers, Executive Powers, Federalism) Flashcards
1
Q
The Supreme Court has what two types of jurisdiction?
A
- Original jurisdiction; and
- Appellate jurisdiction
2
Q
Over what type of cases does the Supreme Court have original jurisdiction?
From where is this power derived?
A
The Supreme Court has original jurisdiction over cases…
- Involving ambassadors, other public ministers and consuls; and
- Those in which a state is a party
The source of the power: Article III, section 2
3
Q
What are the 2 ways for Supreme Court to hear an appellate case?
A
- Writ of Certiorari (discretionary review): Court will grant review if at least 4 justices vote to accept
- Mandatory appeal: appeals for injunctive decisions issued by three-judge district court panels
4
Q
What does the 11th Amendment prohibit?
A
An individual suing any state in federal court without that state’s consent.
5
Q
What are the exceptions to the 11th Amendment?
A
Lawsuits against states are allowed if:
- State has consented;
- Suit is for prospective relief (injunctive) against a state officer;
- United States or another State is the plaintiff;
- Suit involves enforcement of laws under the violations of 13th, 14th, and 15th Amendments and Congress has expressly removed immunity
6
Q
A
7
Q
Does the 11th Amendment prohibit claims against a state official personally for money damages?
A
No
8
Q
Does the 11th Amendment prohibit lawsuits against local governments?
A
No, only against states
9
Q
Requirements for a case to be justiciable (i.e. can be heard by the federal courts)
A
- Standing;
- Ripeness;
- Mootness; and
- Not a political question
10
Q
Elements required for standing
A
- Injury-in-fact: P must show a concrete and particularized injury, actual or imminent, caused by alleged action;
- Causation: D’s conduct must have caused the claimant’s injury;
- Redressibility: Harm must be one the Court can remedy through their resolution of the case;
11
Q
When may a litigant have standing to assert the rights of a third party not before the court?
A
A third party may have standing to assert the rights of the aggrieved party if the Court finds…
- There is a special relationship between P and the injured party (e.g. doctor-patient, lawyer-client, parent-child), and the injured party finds it difficult to bring suit themselves; or
- Associational standing: an association may have standing to bring suit if any one of its members would have standing, and the issue is germane to the association’s purpose.
- First Amendment overbreath: third party may bring a facial challenge, as long as Article III standing still exists.
12
Q
Do organizations have standing to sue?
A
Only if:
- At least one member of the organization would have standing to sue;
- Interest asserted is germaine to purpose of the organization; and
- Neither claim nor relief requires individual participation of members
13
Q
What are the exceptions to the mootness requirement?
A
- Capable of repetition yet evading review: although P’s particular injury will likely become moot before litigation is complete, it is highly likely injury will be repeated in the future (ex. Roe v. Wade and abortions);
- Voluntary cessation: D voluntarily ceases behavior once litigation starts, but could resume at any time; or
- Class action: As long as one member of class has a ripe claim, resolution of one P’s injury will not defeat mootness
14
Q
Examples of non-justiciable political questions?
A
- Impeachment procedure;
- Gerrymandering;
- Foreign policy & war;
- Guaranty clause;
- Amendment ratification procedure.
15
Q
What are the sources of Congressional power in the Constitution?
A
- Enumerated powers (Article I, Section 8)
-
Implied Powers
- Necessary and Proper Clause (Article I, Section 8)
- Taxing and Spending Power (Article I, Section 8, Clause 1)
- Commerce Clause (Article I, Section 8, Clause 3)
16
Q
What does the Commerce Clause give Congress the authority to regulate?
A
Two broad categories:
-
Interstate commerce:
- Channels (highways, waterways);
- People and Instrumentalities (cars, ships, trucks, airplanes);
- Activities that substantially affect interstate commerce
-
Intrastate commerce:
- Economic activities: must substantially affect commercial activity in the aggregate
- Non-economic activities: must substantially and directly affect commercial activity (higher burden)
17
Q
What is Congress’s tax power?
A
General Welfare Clause gives Congress the power to “lay and collect taxes” for any public purpose (Article I, Section 8).
Government has no burden to show compelling purpose for the tax. Only requirement is it must raise revenue.
18
Q
Can Congress regulate via its taxing power?
A
Yes, a tax can be used to achieve a regulatory purpose as long as the tax is reasonably related to raising revenue (low burden).
19
Q
What is required for an indirect federal tax to be valid?
A
must be geographically uniform in every state in which it exists
⚠️ Remember: Tax does not need to exist in every state to be uniform, but must be uniform in every state in which it does exist
Indirect Tax = paid by a consumer to a business or intermediary, who then pays the tax to the government (e.g. import duties, sales tax, cigarette tax)
20
Q
What is required for a direct federal tax to be valid?
A
Must be evenly apportioned among the states according to population
21
Q
Export Taxation Clause
A
Prohibits Congress from taxing goods exported to foreign countries
22
Q
What is Congress’s spending power under Article I, Section 8?
A
Power to “pay the debts and provide for the common defense and general welfare of the United States”
23
Q
Can Congress regulate via its spending power (i.e. place conditions on funding)?
A
Yes, but the conditions:
- Must be related to the general welfare;
- Expressly stated; and
- Not going to coerce the states into unconstitutional behavior
24
Q
Can Congress increase tarrifs on imports?
A
Yes, via its power to regulate international commerce in Article I, Section 8
25
What are Congress's **war and defense** powers?
1. Declare war;
2. Raise and maintain armies, navy, and a militia; and
3. Establish military courts and rules governing military
⭐️ Extremely broad power: allows Congress to take **whatever action is necessary** to provide for the national defense
26
What is Congress's plenary power over **aliens**?
Power to admit or exclude aliens for any reason from *entering* the country
⭐️ Since this is a sovereign power, federal alienage classifications will likely be upheld as long as they aren't arbitrary
27
Can Congress take away a citizen's citizenship **without their consent**?
No, unless citizen either:
* Obtained citizenship through **fraud**;
* **Refused to testify** before Congress; or
* Was a member of a **subversive organization** within five years of becoming a citizen
28
What does the **13th Amendment** ban and how can Congress enforce it?
Slavery.
Congress can enact legislation to prohibit discrimination by either the government ***or private actors*** that has "badges or incidents of slavery"
**⭐️** This is one of only two amendments that apply to behavior by private individuals (the other is that private indivudals also may not restrict freedom of movement among the states)
29
What is the **14th Amendment?**
Prohibits the states from violating the Due Process Clause and Equal Protection Clause
30
How can Congress **enforce** the 14th Amendment?
Congress has the power to override 11th Amendment state immunity and pass laws enforcing due process and equal protection as long as:
1. Congress shows **historical and widespread discrimination** by the state; and
2. Law is "**congruent and proportional**" to remedying discrimination
31
What is the **15th Amendment**?
Prohibits states and the federal government from denying voting rights based on "race, color, or previous condition of servitude"
32
What is the **10th Amendment**?
Holds that powers not delegated to the federal government, nor prohibited to the states, are **reserved to the states**.
Prohibits Congress from forcing states to enact federal regulatory programs (Anti-Comandeering Doctrine)
33
Anti-commandeering doctrine
Prohibits the federal government from "commandeering" state and local governments to enact and enforce federal regulatory programs (e.g. cannot require local officers to perform background checks for guns, *see [Printz v. U.S.](https://www.law.cornell.edu/supct/html/95-1478.ZS.html)*)
34
Can Congress **delegate** its powers to other branches?
Yes, Congress has broad authority to delegate regulatory powers to the executive branch or private agencies as long as Congress specifies an "**intelligible principle"** on which to base regulations. Very low bar, almost always upheld.
⚠️ Note: Congress cannot delegate its war or impeachment powers
35
What are the main powers of the **President**?
1. Enforcement of laws;
2. Commander in chief;
3. Appointment powers;
4. Removal powers;
5. Pardon power; and
6. Veto powers
[Article II, Section 1](https://www.law.cornell.edu/constitution/articleii)
36
What are **inferior officers** and how can they be appointed?
Officers whose work is supervised by superiors that were *appointed by the President and confirmed by the Senate* (i.e. through standard appointment process).
Congress can **delegate** power to appoint inferior officers to:
1. The President (can appoint without approval of Senate);
2. The courts; or
3. Heads of executive departments
37
Can Congress **directly appoint** federal executive officers?
No, cannot appoint officers of the United States (i.e. officers with enforcement or administrative powers)
38
What are the President's **removal** powers?
Can remove high-level executive appointees **without cause**
**⚠️** Exception: must **show cause** to remove:
1. Officer performing a judicial or quasi-judicial role; or
2. Officer appointed for a statutorily specified duration
39
What are the President's **veto** powers?
Power to veto any law passed by both houses within 10 days of receiving it (if no veto, bill automatically becomes law)
40
What are the President's **pardon** powers?
* Power to pardon or commute sentences for **criminal, federal** crimes
* **Cannot** pardon those who have been **convicted and impeached**
41
executive privilege
Qualified privilege that protects the President from having to disclose confidential communications **related to his/her Presidential duties** (e.g. national security, military or diplomatic secrets)
42
What is the President's **treaty** power?
Power to make treaties with foreign governments, must be ratified by **2/3** of the Senate
43
Executive agreement
Agreement made with a foreign nation that **does not** require 2/3 Senate approval
44
What is the President's authority as **Commander in Chief**?
* Can only take military action to defend a sudden, hostile attack
* **Cannot** declare war (only Congress)
⚠️ The extent of the President's military authority is much contested and unclear. For more info, see [Commander in Chief Powers](https://www.law.cornell.edu/wex/commander_in_chief_powers)
45
What is the **impeachment** process?
**Step 1:** House of Representatives votes to **impeach** (majority vote); then
**Step 2:** Senate conducts a trial and votes to **convict and remove** from office (2/3 vote)
46
When does federal law **impliedly preempt** state law?
Courts will infer federal intention to preempt if:
1. State law **hinders purpose** of the federal law;
2. State law makes **compliance** with federal law **impossible** (i.e. impossible to comply with both at the same time); or
3. Congress intended for federal government to **occupy the entire field** ("field preemption")
47
What is the **Dormant Commerce Clause?**
Since Congress has exclusive power to regulate interstate commerce, states are prohibited from **discriminating against** *or* **unduly burdening interstate commerce** even if Congress has not regulated the activity.
48
When does a state regulation **violate** the Dormant Commerce Clause?
If regulation:
1. **Discriminates** against out-of-state commerce;
2. **Unduly burdens** interstate commerce; or
3. **Regulates wholly out-of-state** activity
49
When does a regulation **discriminate against out-of-state competition**?
When it promotes the economic interests of its own residents **at the expense of out-of-staters** (e.g. imposing requirements on out-of-state companies but not in-state companies)
50
Under the Dormant Commerce clause, when are regulations that facially discriminate against out-of-state actors **valid**?
If:
1. Regulation is **necessary** to achieve **important** government interest and **no reasonable, non-discriminatory alternatives** are available (strict scrutiny);
2. State is a **market participant** (i.e. acts like a business or consumer); or
3. Regulation involves **traditional government function** (e.g. trash collection), or
4. Congress has **expressly authorized** regulation (e.g. Congress explicitly states that regulation violates Dormant Commerce, but will allow it anyways)
51
What is the test for whether a regulation **unduly burdens** interstate commerce?
1) the **burden** on interstate commerce,
2) is **clearly excessive to the putative benefits** to the state/local govt.
52
In general, can states **tax** interstate commerce?
Yes, as long as tax does not discriminate or unduly burden interstate commerce.
53
What is the **4-part test** to decide whether a state tax on interstate commerce is valid?
Tax must satisfy the *Complete Auto* test:
1. Tax must have **substantial nexus** to taxing state (i.e. activity being taxed must have significant relationship with the state);
2. Tax must be **fairly apportioned**;
3. Tax **cannot discriminate** against interstate commerce; and
4. Tax must be **fairly related to the services** provided by the state
54
What are the requirements for a state tax on **foreign commerce** to be valid?
Tax must:
1. Satisfy the **Complete Auto Test**;
* *_AND refrain from either:_**
2. Creating a **substantial risk of international multiple taxation**; or
3. Preventing the federal government from "**speaking with one voice**" regarding international trade or foreign affairs issues
55
Can states tax the **federal government**?
No, unless taxes are **incidental** (e.g. taxes on federal employees) and do not burden the federal government
Can the federal government **tax the states**?
Yes
56
What is the **Privileges and Immunities** Clause under Article IV?
(also called the "Comity Clause")
Mandates that states cannot discriminate against the **fundamental rights or esssential activities** of out-of-state residents
⚠️ Note: Privileges and Immunities does **not** apply to corporations. If you see discrimination against an out-of-state corporation, think Dormant Commerce Clause
57
What is considered a **fundamental right** or **essential activity** in regards to Privileges and Immunities?
Includes:
* **Commercial** rights (pursuit of employment, right to engage in business);
* Right to **live**;
* Right to **travel**;
* Right to participate in **judicial and political process**
**⚠️** Note: This is not an exhaustive list
58
When is discrimination against out-of-state residents **valid** under Privileges and Immunities?
If:
1. There is a **substantial justification** for the discrimination (e.g. protectionism or residents are the "peculiar source of evil" law was intended to fix:); and
2. No **less-discriminatory alternatives** are available
59
Distinguish **Privileges and Immunities** under **Article IV** vs. the **14th Amendment**
Article IV: Prevents states from discriminating against non-residents
14th Amendment: prevents states from denying citizens the right to interstate travel (narrowly construed)
60
Does Privileges and Immunities protect **recreational** rights?
**No**, only fundamental rights
Ex. a restriction on hunting licenses for non-residents is valid
