CONLAW (1 - 8)

Question 1

what is Justiciability?

Answer 1

Justiciability refers to the types of matters that a court can adjudicate. If a case is “non-justiciable,” then the court cannot hear it.

Question 2

What are the four justiciability doctrines

Answer 2

standing, ripeness, political question, and mootness

Question 3

Standing (natural person)

Answer 3

P must show : (1) an injury that they (or one with a close relationship to P has suffered; (2) Causation (D caused the injury); (3) Redressability (decision will remedy the injury) and that (4) the P is not suing solely as a a taxpayer (unless challenging gov’t spending as violation of Establishment Clause).

Question 4

Standing (corp)

Answer 4

(1) the members would have standing to sue (2) the interests are germane to the organizations purpose and (3) neither the claim not the relief requires the participation of individual members

Question 5

What must a P seeking injunctive or declaratory relief show?

Answer 5

likelihood of future harm

Question 6

Ripeness

Answer 6

Court considers (1) hardhsip that will be suffered without pre-enforcement review and (2) the fitness of the issues and the record for judicial review (do they have all the info they need to decide the issue)

Question 7

Mootness

Answer 7

If events after the filing of the lawsuit end the injury, it must be dismissed

Question 8

Mootness exceptions

Answer 8

(1) wrong is capable of repetition but evading review (2) voluntary cessation (3) class actions (so long as one member of the class would not be dismissed as moot)

Question 9

Political Question

Answer 9

Cant hear challenges based on :
(1) republican form of govt (2) Pres’s conduct of foreign policy (3) impeachment and removal process (4) partisan gerrymandering

Question 10

How do cases get to the SC?

Answer 10

Writ of certiorari (discretionary)
Appeal (must hear - come from 3 judge fed dist court panels)

Question 11

Final judgment rule

Answer 11

SC can only hear cases after there has been a final judgment from the highest state court (or 3 j panel) and will ONLY review if the decision is NOT supported by an independent and adequate state law ground

Question 12

What does the 11th amendment do?

Answer 12

bars suits against states in fed ct

Question 13

What does sovereign immunity bar?

Answer 13

suits against states in state courts or federal agencies

Question 14

Is there a general federal police power?

Answer 14

NO. But there is a police power over DC, federal lands, military bases, and Indian reservations

Question 15

What is the necessary and proper clause?

Answer 15

Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government

Question 16

What is the taxing and spending power?

Answer 16

It gives Congress the power to tax and spend for the general welfare for any public purpose not prohibited by the constitution

Question 17

How to know if a tax is valid

Answer 17

if it bears a reasonable relationship to revenue production or if Congress has the power to regulate the activity being taxed

Question 18

Commerce Power - a federal law (to be valid) must either…

Answer 18

(A) regulate the channels of interstate commerce or (b) regulate the instrumentalities of interstate commerce or (c) regulate activities that have a substantial effect on interstate commerce (if noneconomic, not usually upheld)(if economic upheld if the aggregate has a rational basis to conclude it substantially effects interstate commerce)

Question 19

whats the 10th amendment

Answer 19

all powers not granted to the US, nor prohibited to them, are reserved to the states or the people

Question 20

10th amendment concepts

Answer 20

(1) congress cannot compel state regulatory or legislative action
(2) Congress may induce to action by placing conditions on the grant of money that (a) are expressly stated, (b) relate to the purpose of the program, (c) are not unduly coercive and (d) do not otherwise violate the constitution; and (3) Congress may prohibit harmful state commercial activities

Question 21

14th amendment powers given to congress

Answer 21

(1) war and related powers
(2) investigatory power
(3) property power
(4) bankruptcy power
(5) postal power
(6) power over citizenship (resident aliens are entitled to notice and hearing before deportation)
(7) admiralty power
(8) power to coin money and fix weights and measures
(9) patent/copyright power

Question 22

When may congress delegate?

Answer 22

when they set intelligible standards for the power (and it isn’t something that is uniquely confined to congress)

Question 23

What is the president’s appointment power? Any limitations?

Answer 23

P may appoint ambassadors, fed judges, and officers of the US with the advice and consent of the Senate

P may not make recess appointments (do not req Senate approval) during intrasession recesses that are less than 10 days

Question 24

Does Congress have an appointment power?

Answer 24

No, and it may not give itself or its officers that power . BUT it can vest the appointment of inferior officers in the president, the heads of departments or the lower federal courts

Question 25

What is the president’s removal power? Can Congress place limits?

Answer 25

Unless limited by statute, P may fire any executive branch officer.

If congress wants to limit P’s removal power by statute, the office involved must be one where (1) independence from the president is desirable and Congress can show (2) good cause. They cannot prohibit removal entirely.

BUT if person is head of independent agency, sole director, and exercises substantial discretion, Congress cannot limit P’s removal power.

Question 26

Impeachment: Who may be impeached?

Answer 26

P, vice P, fed judges, officers of the US

Question 27

Impeachment: For what reasons can one be impeached?

Answer 27

for treason, bribery, or for high crimes and misdemeanors

Question 28

Does impeachment remove one from office?

Answer 28

No, impeachment and conviction is required

Question 29

What is required in the house / Senate for impeachment and conviction?

Answer 29

Reps: majority vote
Senate: 2/3s vote

Question 30

Describe executive immunity of P

Answer 30

absolute immunity to civil suits for money for any actions while in office BUT no immunity for actions that occurred prior to taking office

Question 31

Describe executive privilege of P

Answer 31

P has executive privilege over presidential papers and conversations, but the privilege yields to other important gov’t interests

Question 32

State and congressional subpoenas of P’s financial records : state grand jury v. congressional committee

Answer 32

No immunity ; balance of the competing interests

Question 33

Describe the presidential pardon

Answer 33

Can pardon those accused or convicted of federal crimes (NOT state crimes or for civil liability)

Congress may not limit this power

Question 34

Describe veto power

Answer 34

If P vetos an act of congress, act still becomes law if veto is overriden by a two thirds vote of each house

Question 35

P’s power to act as chief executive:
1. with express or implied authority of congress?
2. Where congress is silent?
3. Where P acts against express will of Congress

Answer 35

1. actions likely valid
2. actions will be upheld unless it usurps the power of another governmental branch / prevents them from carrying out tasks
3. likely invalid

Question 36

Preemption definition

Answer 36

the supremecy clause provides that if there is a conflict between federal law and state and local law, the federal law will preempt the state law

Question 37

express preemption

Answer 37

the statute says that the federal law is exclusive in the field

Question 38

implied preemption

Answer 38

1. conflict in requirements between state and federal law - fed law preempts
2. state law prevents achievement of fed objective - fed law preempts
3. Field preemption - if congress evidences a clear intent to preempt state law, even if no conflicts, fed law will preempt.

Question 39

In all preemption cases there is a presumption. What is it?

Answer 39

that the historic state police powers are not to be superseded unless that was the clear and manifest intent of Congress (ESPECIALLY if it involves health, safety, or welfare)

Question 40

what is the intergovernmental immunity doctrine

Answer 40

(1) states cannot regulate the fed gov or its agents while performing their federal functions
(2) states cannot directly tax federal instrumentalities without the consent of Congress, and it is unconstitutional to pay a state tax out of the federal treasury
(3) nondiscriminatory indirect taxes are permissible if they do not unreasonably burden the federal govt (ex. state income tax on fed employees)

Question 41

Privileges and immunities clause of article 4

Answer 41

states may not deprive citizens of other states the privileges and immunities it accords its own citizens

Question 41

If a tax only applies to states and not private business, will it be valid?

Answer 41

No, 10th amendment will prohibit it as unduly coercive commandeering.

Question 42

Full faith and credit clause! What does it do?

Answer 42

requires certain state court judgements to be recognized in other states. Applies if:
(1) the court that rendered judgment had jurisdiction over the subject matter and the parties
(2) the judgment was on the merits; and
(3) the judgment is final

Question 42

Privileges and immunities clause of the 14th amendment

Answer 42

state laws that interfere with the right to travel are unconstitutional

Question 43

Dormant commerce clause analysis

Answer 43

(1) If law burdens interstate commerce, violation
(2) Unless necessary to achieve an important gov’t purpose
* states discriminating against out of state business to protect in state economic interests are almost always invalid - would have to show that there are no less discriminatory alternatives available

Question 43

Dormant commerce clause - what is it?

Answer 43

state and local laws are unconstitutional if they place an undue burden on interstate commerce.

Question 43

What exempts a state / local law from being struct down under the dormant commerce clause?

Answer 43

Congressional approval
State acting as market participant
Favoring gov’t performaing traditional gov’t functions

Question 43

Privileges and immunities clause of article 4 - out of staters ability to earn a living

Answer 43

Violation, unless necesssary to achieve an important gov’t purpose

Question 44

Privileges and immunities clause of article 4 analysis

Answer 44

(1) the law discriminates against out of staters
(2) the discrimination is with regard to fundamental rights or important economic activities
(3) the party is proper (not a corporation or an alien)
(4) the discrimination is necessary to achieve an important government purpose

Question 45

Powers of states to tax - discrimination?

Answer 45

States may not use their tax systems to help in-state businesses

Question 46

Powers of states to tax - when can they tax business activities?

Answer 46

When there is a substantial nexus to the state (i.e. when a business avails itself of the privilege of doing business in the state)

Question 47

Powers of states to tax - tax on goods purchased outside the state but used within it - allowed?

Answer 47

Yes

Question 48

Powers of states to tax - when may state force an interstate seller to collect tax?

Answer 48

if the seller has a substantial nexus with the taxing state (i.e. maintains offices - does not have to be physically present though)

Question 49

Powers of states to tax - commoditites in course of interestate commerce?

Answer 49

No tax on these - exempt
(1) interstate transportation begins when the cargo is delivered to an interstate carrier OR actually starts its interstate journey
(2) if there is a break in transit, does not destroy interstate character of shipment UNLESS intended to suspend or end the shipment
(3) interstate shipment ends when the cargo reaches its destination, when the goods are then subject to local tax.

Question 50

Privilege, license, Franchise, or occupational taxes

Answer 50

Generally permitted. Requirements:
(1) the activity taxed must have a substantial nexus with the taxing state
(2) the tax must be fairly apportioned
(3) the tax must not discriminate against interstate commerce
(4) the tax must fairly relate to services provided by the state.

Question 51

what does the Fourteenth Amendment prohibit?

Answer 51

Fourteenth Amendment prohibits states (not the federal government or private persons) from depriving any person of life, liberty, or property without due process and equal protection of the law.

Question 52

For a restriction on free speech to be unconstitutional, who must be restricting speech?

Answer 52

a governmental unit / it must be state action

Question 53

What speech is protected under the the constitution?

Answer 53

verbal and symbolic conduct undertaken to communicate an idea

Question 54

what speech is not protected under the constitution?

Answer 54

(1) fighting words - inherently likely to incite immediate physical retaliation
(2) words that create a clear and present danger of immanent unlawful action

Question 55

Are schools public forums?

Answer 55

no

Question 56

When my schools regulate speech?

Answer 56

when it may be reasonably regulated to serve the school’s educational mission or if school officials conclude that the speech will materially disrupt work and discipline at the school, which includes protecting student safety

Question 57

When may speech be regulated in a nonpublic forum

Answer 57

it may be reasonably regulated to (1) serve the purpose for the forum or (2) to prevent material and substantial disruption at the forum

Question 57

may a regulation of speech give officials broad discretions over speech?

Answer 57

no, there need to be sufficient limits on discretion

Question 57

when is a regulation of speech overbroad and vague?

Answer 57

If it punishes a substantial amount of protected speech, judged in relation to the regulation’s plainly legitimate sweep

Question 57

What happens to a regulation on speech if it is overbroad and vague?

Answer 57

it is unconstitutional

Question 57

What does the due process clause prohibit?

Answer 57

the taking of a person’s life, liberty, or property without due process of law

Question 58

What do you need to show to have a property interest in a government benefit (like education) protected by due process?

Answer 58

must show a legitimate claim or entitlement to the benefit

Question 59

What does due process require before a taking of a person’s life, liberty, or property ?

Answer 59

(1) notice of the charges against the person and
(2) an opportunity to be heard by an unbiased decisionmaker

Question 60

when is a student entitled to education?

Answer 60

when their attendance is required by state law (or if it is a policy of the government to provide the education claimed)

Question 61

What are the 3 suspect classifications requiring strict scrutiny?

Answer 61

Race, national origin, and alienage