Con Law (Kaplan) Flashcards
Can private individuals sue states for money damages?
No. The 11th Amendment provides sovereign immunity, therefore private individuals cannot sue states for money damages (key word is money damages).
Exceptions:
1) Subdivisions of a state (e.g., towns, cities and counties) do NOT have immunity.
2) A private citizen may sue a state requesting an injunction.
3) Federal suits brought by one state against another.
4) Suits by the fed. govt. against a state.
5) A state may consent to suit in federal court if it clearly waives its 11th amendment immunity:
–The state must do so expressly and unequivocally; or
–Congress can authorize individual citizen private suits involving monetary damages to compensate for state violations of the post-civil war 13th, 14th and 15th amendments pursuant to its enforcement powers.
Standing
1) Injury in Fact: P must show a direct and personal injury, actual or imminent, caused by the action that he is challenging. (Where P has not suffered any personal injury or harm, P does not have standing)
2) Causation - Injury was caused by the challenged action (direct nexus); and
3) Redressability - P must show that they will benefit from the remedy sought in the litigation and that the court can provide the remedy.
Does have a taxpayer have standing to challenge a law that uses tax dollars in a way he believes to be unconstitutional?
No, they lack standing UNLESS the taxpayer can challenge the law based on a belief that it violates the Establishment Clause of the 1st Amendment.
What is the jurisdiction of the Supreme Court?
1) Original jurisdiction over cases involving ambassadors, foreign diplomats, and states.
2) Congress CANNOT enlarge or restrict the Supreme Court’s ORIGINAL JURISDICTION.
3) Appellate jurisdiction exists where the Constitution or a federal law is at issue.
Congress’ Power over the Lower Courts
Constitution grants Congress power to create courts inferior to the Supreme Court and prescribe their powers (I.e., change jurisdiction, eliminate or create courts).
Can Congress take a case from appellate jurisdiction and move it to original jurisdiction?
No.
Does Congress have the power to enact laws under its federal police power or Congress’ power to promote the general welfare?
No, these powers do not exist unless discussing the District of Columbia or some other federal territory.
How does a Bill get passed?
Congress passes a bill with a majority in both houses. The President then signs the bill or vetoes it.
If the bill is vetoed, Congress can override the veto if it gets a vote of 2/3 majority in each house.
Where does Congress get its powers to legislate?
Think “PEN”
P - Powers (I.e., Enumerated Powers) - To collect taxes and spend $ for the general welfare, to borrower $ on the credit of the US, regulate commerce, declare war, and to raise and support the army, navy and militia.
E - Enabling Clauses of the 13th, 14th and 15th Amendments - Gives Congress the power to enforce those amendments by “appropriate legislation”.
N - Necessary and Proper Clause - Gives Congress the implied power to make all laws which shall be necessary and proper to carry out an enumerated power. (Note: The Necessary and Proper Clause an answer by itself will usually be incorrect, as it should be coupled with another power)
Commerce Power
Congress can regulate:
1) Channels of interstate commerce (I.e., highways, waterways, and air traffic);
2) Instrumentalities of Interstate Commerce (I.e., cars, trucks, ships and airplanes); and
–Ex: Congress can enact a law prohibiting the shipment of goods made with child labor.
3) Activities that “substantially affect” interstate commerce.
–Substantial Effect: Congress has the power to regulate any economic activity, whether carried on in one state or many, which has a substantial effect upon interstate commerce.
–Cumulative Effect Doctrine: Congress can regulate activities that have a tiny effect on interstate commerce independently, when all such activities are put together, would have a substantial cumulative effect on interstate commerce.
Limitations on Congress’ Interstate Commerce Power
Congress cannot use the power to regulate INTRASTATE, NON-ECONOMIC activity.
–E.g., Possession of a handgun is not an economic activity. Nor is violent crime.
Note: The commerce power CANNOT overcome state sovereign immunity - I.e., the Commerce Clause does not overcome the 11th Amendment. Thus, Congress cannot use the commerce power to create a private cause of action for money damages against a state.
Taxing Power
Congress has the power to impose and collect taxes in order to pay debts and spend for the general welfare.
A congressional act purporting to be a “tax” should be upheld as a valid exercise of the taxing power if:
1) It raises revenue (objective test);
2) It was intended to raise revenue even if it doesn’t (subjective test); or
3) Congress has the power to regulate the activity that’s being taxed (regulatory test).
Spending Power
Congress has the power to spend for the general welfare.
Congress can use its spending power to get around limits on its regulatory power. It may pass a law offering money to states or individuals in exchange for “x”.
Often, “x” is not something that Congress could order the state or individual to do directly.
When can Congress place a condition on the receipt of federal funds by a state?
Congress may place a condition on the receipt of federal funds by a state if:
1) The spending serves the general welfare;
2) The condition is unambiguous;
3) The condition is related to the federal program (relatedness);
4) The state is not required to undertake unconstitutional action; and
5) The amount in question is not so much that the state is “coerced” into accepting the funds.
War and Defense Powers
Congress may declare war, raise and support armies, provide and maintain a navy, and organize, arm, discipline and call forth a militia.
-During wartime, Congress has the power to:
1) Activate the military draft and selective reserve;
2) Initiate wage, price and rent control of the civilian economy; and
3) Exclude civilians from certain restricted areas.
Congress can establish military courts to gain jurisdiction over members of the armed forces, conduct court-martial proceedings and try enemy combatants.
Are non-US citizens within the US (or US territories) entitled to due process rights?
Yes.
Civil War Amendments
Congress has the power to enforce:
1) The 13th Amendment, which bans slavery;
2) The 14th Amendment, which prohibits states from violating due process, equal protection and privileges and immunities; and
3) The 15th Amendment, which prohibits states from discriminating with respect to race in voting rights.
Delegation of Power
Congress can create an executive agency (I.e., the FDA) and give the agency some legislative power that will prevail over inconsistent state law.
Limitation: Congress can delegate power so long as there is some “intelligible principle” that guides the agency.
When can Congress delegate legislative powers to an executive agency?
So long as Congress gives the agency some “intelligible principle” that guides the agency.
What are the executive branch’s powers?
Think “VAPER”
V - Veto
A - Appointment
P - Pardon
E - Enforcement (can enforce but not create laws)
R - Removal
Appointment Power
The President appoints “high-level officials” such as Ambassadors and Cabinet members WITH the advice and consent of the SENATE.
Congress can delegate appointment of “inferior” officers (anyone who has a superior) to:
1) The President;
2) The Judiciary; or
3) The head of an executive department.
Removal Power
Executive Officials: The President may remove any executive appointee without cause (I.e., an ambassador or cabinet member).
Executive officials having fixed terms: The President must have cause to remove executive officers who have fixed terms and officers who perform judicial or quasi-judicial functions (e.g., a member of the FTC).
Federal Judges: The President cannot remove judges, even for cause. The only way to remove a federal judge is by impeachment.
Congressional approval / removal: Congress CANNOT require the President to get congressional approval before removing someone; Congress cannot remove an official itself.
Veto Power
Once Congress has passed legislation by a majority vote in each house, the President must sign the bills for it to become law.
If the President vetoes it, Congress must override the veto.
If the President takes no action within 10 days, it becomes law.
Pocket Veto
If the bill is presented to the President less than 10 days before the end of a legislative session, them the President can “pocket veto” it. (I.e., do nothing)
