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Bar Exam Study > Con Law Lecture > Flashcards

Con Law Lecture Flashcards

1
Q

What are the requirements for a federal court at any level to hear a case or controversy?

A
  1. Standing
    - actual injury or, if seeking injunctive or declaratory relief, must show a likelihood of future harm
    - causation (D caused harm)
    - No 3P standing unless close relationship or 3P is unable to assert own rights or organization
  2. Ripeness
    - considerations = hardship suffered w/o reenforcement review
    - fitness of the issues = can something be gained from actual review?
  3. Mootness
    - if events after filing the suit end P’s injury, the case is moot
  4. Political question doctrine
    - federal court will not adjudicate cases involving political questions (republican form of government clause “direct gov,” challenges to the President’s conduct of foreign policy, challenges to the impeachment and removal process, and challenges to partisan gerrymandering)
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2
Q

what type of discretion does the SC have as to whether to grant a writ of cert?

A

complete discretion

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3
Q

How do cases go from state courts to the SC?

A

writ of cert (remember final judgment rule)

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4
Q

how do cases get from federal courts of appeals to the SC?

A

writ of cert (remember final judgment rule)

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5
Q

in which court does an appeal go directly to the SC?

A

three-judge federal district courts (SC must take this case) (remember final judgment rule)

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6
Q

over what type of case does the SC have original and exclusive jurisdiction?

A

suits b/t state governments

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7
Q

If a state court case is taken by the SC and the SC’s decision rests on both a state law and a federal law, if the SC’s reversal of the federal law ground will not change the result in the case, what happens?

A

the SC cannot hear the case

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8
Q

Can federal and state courts hear suits against state governments?

A

No b/c of sovereign immunity (exceptions for waiver and suits pursuant to Sec. 5 of the 14th amend)

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9
Q

which amendment deals w/ sovereign immunity?

A

11th

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10
Q

can the federal government sue state governments?

A

no

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11
Q

can state officers be sued?

A

yes–for: injunctive relief, and money damages to be paid out of their own pockets

Exception: can’t be sued if the state treasury will be paying the retroactive damages

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12
Q

Can the federal court enjoin pending state court proceedings?

A

no, this is abstention

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13
Q

which article gives Congress power?

A

article 1

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14
Q

what is required before Congress can act?

A

express or implied congressional power

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15
Q

is there a general federal police power?

A

no (this belongs to state and local govs)

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16
Q

when does congress not need express or implied Congressional power to act?

A

MILD (military, indian territories, lands (federal lands/territories or DC)

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17
Q

how does congress use the necessary and proper clause?

A

to make law that are necessary and proper using any means to carry out its authority and not prohibited by the constitution

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18
Q

how can congress use the taxing/spending power to act?

A

Congress may tax and spend for the general welfare

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19
Q

how can congress use the commerce power to act?

A

Congress may regulate:

  1. channels of interstate commerce
  2. instrumentalities of interstate commerce and persons/things in interstate commerce
  3. economic activities that have a substantial effect on interstate commerce (consider in the aggregate unless noneconomic interest like domestic violence)
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20
Q

what limits congressional power?

A

the 10th amendment

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21
Q

can congress compel state regulatory or legislative action?

A

No b/c 10th amendment. However Congress can induce state action by putting strings on grants (conditions expressly stated and relate to the purpose of the spending program and are not unduly coercive)

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22
Q

can congress create new rights?

A

No, this is for the court. Congress may act only to prevent or remedy violations of rights already recognized by the courts

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23
Q

can congress delegate its power?

A

yes and there is no limit

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24
Q

what type of veto are unconstitutional?

A
  1. legislative vetos (where Congress attempts to overturn executive action w.o bicameralism and presentment (give to president to sign)
  2. line item veto
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25
Q

can congress delegate executive power to itself or its officers?

A

no

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26
Q

which article empowers the president and the executive branch?

A

article 2

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27
Q

what is a treaty?

A

an agreement b/t the US and a foreign county that are negotiated by the president and is effective when ratified by the Senate

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28
Q

when are treaties effective?

A

when ratified by the Senate?

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29
Q

does a treaty prevail over conflicting state laws?

A

Yes

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30
Q

what happens if a treaty conflicts w/ a federal statute?

A

the most recently adopted controls

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31
Q

if a treaty conflicts w/ the Constitution, what happens?

A

the treaty is invalid

32
Q

what is an executive agreement

A

an agreement b/t the US and a foreign country that is effective when signed by the President and the head of the foreign nation

33
Q

what purpose can an executive agreement be used for?

A

any purpose: anything a treaty can do, an executive agreement can do

34
Q

if an executive agreement conflicts w/ state law, what happens?

A

the executive agreement prevails

35
Q

if an executive agreement conflicts w/ the constitution, what happens?

A

the constitution prevails

36
Q

is it constitutional for Congress by statute to designate the capital of a foreign country?

A

no

37
Q

what type of powers does the president have as Commander in chief to use American troops in foreign countries?

A

brand powers

  • a president’s use of troops has never been found unconstitutional
  • if you see a challenge to the use of troops, choose political question or if not available, choose president has broad power to command troops
38
Q

who does the president directly appoint?

A

ambassadors, federal judges and officers of the US (all 3 must be approved by the Senate to take office)

39
Q

who can Congress give the power of appointment of inferior officers to?

A

the president, heads of departments, or the lower federal courts

40
Q

can congress give itself or its officers the appointment power?

A

no

41
Q

can the president make recess appointments during intrasession recesses that are less than 10 days?

A

no

42
Q

can the President fire an executive branch official?

A

yes, unless removal is limited by statute

43
Q

what can the President, VP, federal judges and officers of the US be impeached and removed for?

A

treason, bribery, or high crimes and misdemeanors

44
Q

does impeachment remove a person from officer?

A

no, it just sends the person for trial in the Senate. If Senate convicts, then the person is removed from office

45
Q

does the president have absolute immunity to civil suits for monetary damages for actions that took place before s/he took office?

A

No, just while in office

46
Q

Does the executive privilege for presidential papers and conversations ever yield?

A

yes, when there are other important government interests (such as a need for evidence in criminal trials)

47
Q

what is federalism?

A

limits on state/local gov power b/c of the existence of a national gov and other states

48
Q

what part of the constitution deals w/ preemption?

A

the Supremacy clause of Article VI which provides that the Constitution and laws and treaties made pursuant to it are the supreme law of the land

49
Q

what are the 2 types of preemption?

A
  1. express - specifically stated in statute
  2. implied-if statute is silent
  • if fed statute and state statute are mutually exclusive (i.e. can’t comply w/ both) then fed law preempts
  • if state law impedes the achievement of a fed objective, the federal law preempts state law
  • if congress evidences a clear intent to preempt state law, federal law preempts state law
50
Q

when does implied preemption happen (3 circumstances)

A
  • if fed statute and state statute are mutually exclusive (i.e. can’t comply w/ both) then fed law preempts
  • if state law impedes the achievement of a fed objective, the federal law preempts state law
  • if congress evidences a clear intent to preempt state law, federal law preempts state law
51
Q

can states tax or regulate fed gov activity?

A

no

52
Q

what is the other name for the DCC?

A

negative implications of the commerce clause

53
Q

what is the DCC?

A

where congress can regulate state action when state action places an undue burden on interstate commerce

54
Q

which commerce clause power applies when the actor is Congress?

A

the commerce clause

55
Q

which commerce clause applies if a challenge is made to state or local government action?

A

dormant commerce clause

56
Q

what does the privileges AND immunities clause say?

A

no state may deny citizens of another state of the P and I the state affords its own citizens (anti discrimination)

57
Q

what is the only thing that privileges OR immunities clause protects?

A

the right to travel

58
Q

what does the DCC require?

A

burden on interstate commerce

59
Q

what does the full faith and credit clause say?

A

courts in one state must give full faith and credit to judgments in court of another state so long as:

  1. the court that rendered the judgement had jurisdiction over the parties and subject matter,
  2. the judgment was on the merits
  3. the judgment is final
60
Q

what is the state action doctrine?

A

where the constitution applies only to government action

61
Q

does private conduct need to comply with the constitution?

A

no

62
Q

can congress, by statute, apply constitutional norms to private conduct

A

yes

63
Q

what are the 2 instances where private conduct must comply w/ the constitution?

A
  1. public function exception = the constitution applies if a private entity is performing a task traditional, exclusively done by the government and
  2. the entanglement exception = the constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity
64
Q

is government subsidy of a school sufficient to find state action?

A

no

65
Q

who does the BOR directly apply to?

A

the federal government

66
Q

how is the BOR applied to state and local governments?

A

through its incorporation into the due process clause of the 14th amendment

67
Q

which rights have not been incorporated?

A
  • right to not quarter soldiers
  • right to grand jury indictment in criminal cases
  • right to a jury trial in civil cases
  • right against excessive fines
68
Q

what are the 3 levels of scrutiny?

A
  1. rational basis
  2. intermediate
  3. strict
69
Q

what is the test for rational basis scrutiny?

A

a law is upheld if it:

  • is rationally related to
  • a legitimate government purpose
70
Q

who has the BOP when rational basis is applied?

A

challenger

71
Q

what is the test for intermediate scrutiny?

A

a law will be upheld if it:

  • is substantially related to
  • an important government purpose
72
Q

in which 2 levels of scrutiny does the court look at the government’s actual purpose?

A

intermediate and strict

73
Q

who has the BOP when intermediate scrutiny is applied?

A

the government

74
Q

what is the test for strict scrutiny?

A

a law will be upheld if it is necessary to achieve a compelling governmental purpose

-compelling = vital

75
Q

in which level of scrutiny must the means be the least restrictive alternative to satisfy the ends?

A

strict

76
Q

who has the BOP under strict scrutiny?

A

the government

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