Con Law - Overview Flashcards
IS THERE A CASE OR CONTROVERSY? - No Advisory Opinions
- Ripeness—harm must actually be threatened
- Mootness—must be real, live controversy at all stages; if issue has been resolved, court will not hear
a. Exception—situation capable of repetition yet evading review - Standing—plaintiff must have a concrete stake in the outcome at all stages of litigation
a. Injury in fact—specific injury, not theoretical
1) Taxpayers—too remote/abstract
a) Exception: Taxing and spending measure violating Establishment Clause
b. Remediable by court decision - Adequate and independent state grounds—court will not hear appeal from state court if adequate and independent nonfederal grounds support state decision
IS THERE A CASE OR CONTROVERSY? - Abstention
If action already going on in state court on unsettled question of state law, federal court will abstain so state can settle issue
IS THERE A CASE OR CONTROVERSY? - Political Question
Court will not decide issue that is not suitable for judicial branch
IS THERE A CASE OR CONTROVERSY? - 11th Amendment and Sovereign Immunity
Generally cannot sue state in federal court for damages (without state’s permission)
- Exceptions: Actions against state officers and removal of immunity under 14th Amendment
IS LAW WITHIN CONGRESS’S POWER? - Necessary and Proper Clause
Congress has the power to make laws necessary and proper for executing any power granted to any branch of federal government
IS LAW WITHIN CONGRESS’S POWER? - Taxing Power
If revenue raising, generally valid
IS LAW WITHIN CONGRESS’S POWER? - Spending PowerSpending Power
Spending may be for any public purpose; Congress may regulate beyond enumerated powers by attaching strings to a grant as long as the strings are: (i) clearly stated, (ii) related to the purpose of the grant, and (iii) not unduly coercive
IS LAW WITHIN CONGRESS’S POWER? - Commerce Power
Congress may regulate:
- Channels of interstate commerce—roads, rails, waterways, phones, etc.
- Instrumentalities of interstate commerce—trucks, trains, planes, etc.
- Activities having a substantial economic effect on interstate commerce
a. Generally must be economic or commercial activity
IS LAW WITHIN CONGRESS’S POWER? - Property Power
Includes power of eminent domain, to dispose of federal property, and to make rules/ laws regulating federal lands and Indian reservations
IS LAW WITHIN CONGRESS’S POWER? - Miscellaneous Other Powers
War (including power to declare war and fund war), investigatory, bankruptcy, postal, citizenship, admiralty, coin money, fix weights and measures, and grant patents and copyrights
IS LAW WITHIN CONGRESS’S POWER? - Delegation
- Congress may delegate its power to other branches
a. Intelligible standard “requirement” for delegation (almost anything suffices)
IS LAW WITHIN CONGRESS’S POWER? - Speech or Debate Clause
Immunity for speech made within Congress
IS LAW WITHIN CONGRESS’S POWER? - Legislative Veto
Congress cannot make a law reserving to Congress the right to overturn discretionary executive action without passing a new law and presenting it to the President for approval
IS PRESIDENT ACTING WITH EXECUTIVE POWER? - Domestic Powers of President
- Appointment and removal of officers and Supreme Court Justices with advice and consent of Senate
- Pardon—federal crimes only
- Veto power—10 days to veto; if President does not do so and:
a. Congress in session = approval
b. Congress out = pocket veto
c. No line item veto - Power as chief executive/executive orders— Youngstown guidance from Justice Jackson:
a. If express or implied authority from Congress—action likely valid
b. If Congress silent—action valid if it does not impinge on powers of another branch
c. If against Congress’s will—action likely invalid
IS PRESIDENT ACTING WITH EXECUTIVE POWER? - Power Over External Affairs
- President may commit troops but power to “declare war” belongs to Congress
- Treaty power—signs treaties with approval of two-thirds of Senate
a. Treaty is on par with other federal laws (“supreme law of land”)
b. Treaties cannot conflict with Constitution - Executive agreements—enforceable if not in conflict with federal law, treaties, or Constitution