ConLaw Flashcards
What are the Justiciability doctrines?
Standing + Ripeness / Mootness + Political Question
What does the Privileges and Immunities clause prohibit?
prohibits discrimination against nonresidents with respect to essential activities (e.g., pursuing a livelihood) unless (i) the discrimination is closely related to a substantial state purpose, and (ii) less restrictive means are not available.
Standing Requirements
a. Injury. The plaintiff must allege and prove that he or she has
been injured or imminently will be injured
i. Plaintiffs only may assert injuries that they personally
have suffered
ii. Plaintiffs seeking injunctive or declaratory relief must
show a likelihood of future harm
b. Causation and redressability. The plaintiff must allege and
prove that the defendant caused the injury so that a favorable
court decision is likely to remedy the injury
When is third-party standing available?
- close relationship between the plaintiff and the injured
third party - the injured
third party is unlikely to be able to assert his or her
own rights
When is there organizational standing?
an organization may sue for its members, if
(1) the members would have standing to sue;
(2) the interests are germane to the organization’s
purpose;
(3) neither the claim nor relief requires participation of
individual members
When do taxpayers have standing?
taxpayers have standing to challenge government
expenditures pursuant to federal (or state and local) statutes
as violating the Establishment Clause
When is a matter “ripe” for review?
Considerations:
a. The hardship that will be suffered without pre-enforcement review
b. The fitness of the issues and the record for judicial review
What are the exceptions to mootness?
a. Exception: wrong capable of repetition but evading review
b. Exception: voluntary cessation. If the defendant voluntarily
halts the offending conduct, but is free to resume it at any
time, the case will not be dismissed as moot.
c. Exception: class action suits. A class action will not be
dismissed if the named plaintiff’s claim becomes moot so
long as one member of the class has an ongoing injury.
What issues will federal courts not adjudicate as “political questions”?
a. The “republican form of government clause”
b. Challenges to the President’s conduct of foreign policy
c. Challenges to the impeachment and removal process
d. Challenges to partisan gerrymandering
When does the Supreme Court have jurisdiction?
a. All cases from state courts come to the Supreme Court by writ of certiorari
b. All cases from United States courts of appeals come to the Supreme Court by writ of certiorari
c. Appeals exist for decisions of three-judge federal district courts
d. The Supreme Court has original and exclusive jurisdiction for suits between state governments
When can states be sued (in Federal Court or state courts)
- Explicit waiver of sovereign immunity
- States may be sued pursuant to federal laws adopted
under section 5 of the Fourteenth Amendment.
Congress cannot authorize suits against states under
other constitutional provisions. - The federal government may sue state governments.
- Bankruptcy proceedings
When are suits against state officers allowed?
— state officers may be sued for injunctive relief
— state officers may be sued for money damages to be paid out of their own pockets
— state officers may not be sued if it is the state treasury that will be paying retroactive damages
When does Congress have police power?
There is no general federal police power. Exceptions: Congress has the police power when it is legislating for the military, Indian reservations, federal lands and territories, and the District of 78Columbia.
When can Congress use its tax and spending powers?
Congress may adopt any tax and any spending program
which it believes will serve the general welfare
When can Congress use its Commerce power?
i) Congress may regulate the channels of interstate
commerce
ii) Congress may regulate the instrumentalities of
interstate commerce and persons or things in
interstate commerce
iii) Congress may regulate economic activities that have a
substantial effect on interstate commerce. (In the area
of non-economic activity, a substantial effect cannot
be based on cumulative impact.) Also, five justices
have said that Congress cannot regulate inactivity.
What are the limits of Congress’ power under section 5 of the 14A?
Congress’ power under section 5 of the Fourteenth Amendment.
Congress may not create new rights or expand the scope of rights.
Congress may act only to prevent or remedy violations of rights
recognized by the courts and such laws must be “proportionate”
and “congruent” to remedying constitutional violations.
When do executive agreements (not treaties) supercede existing law?
Executive agreements prevail over conflicting state laws, but
never over conflicting federal laws or the Constitution.
When do treaties supercede existing law?
a. Treaties prevail over conflicting state laws
b. If a treaty conflicts with a federal statute, the one adopted last
in time controls
c. If a treaty conflicts with the United States Constitution, it is
invalid
When can Congress limit the Executive’s removal power?
i. it must be an office where independence from the
President is desirable and
ii. Congress cannot prohibit removal, it can limit removal
to where there is good cause and
iii. it cannot be a single person who heads an agency and
exercises substantial discretion
Exceptions to the dormant commerce clause
If the law burdens interstate commerce, it violates the
dormant commerce clause unless:
- it is necessary to achieve
an important government purpose
- Congressional approval
- The market participant exception. A state
or local government may prefer its own citizens in
receiving benefits from government programs or in
dealing with government-owned businesses.
If the law discriminates against out-of-staters with regard to
their ability to earn their livelihood, it violates the privileges
and immunities clause of Article IV unless…
it is necessary to
achieve an important government purpose
When can a state tax interstate commerce?
- States may not use their tax systems to help in-state businesses
- A state may only tax activities if there is a substantial nexus to the
state. A state may require that out-of-state businesses collect sales
taxes, even if they do not have a physical presence with the state,
so long as they have a substantial nexus to the state. - State taxation of interstate businesses must be fairly apportioned
When is private conduct treated as state action?
a. The public function exception. The Constitution applies if a
private entity is performing a task traditionally exclusively
done by the government.
b. The entanglement exception. The Constitution applies if the
government affirmatively authorizes, encourages, or
facilitates unconstitutional activity
Which of the bill of rights has not been incorportated against the states?
a. The Third Amendment right to not have a soldier quartered in
a person’s home.
b. The Fifth Amendment right to grand jury indictment in
criminal cases.
c. The Seventh Amendment right to jury trial in civil cases.
When is there a deprivation of life, liberty, or property (which triggers DP concerns)?
- loss of a
significant freedom provided by the Constitution or a
statute - deprivation of property occurs if there is an
entitlement and that entitlement is not fulfilled
What is the test for procedural due process?
Balance
i) The importance of the interest to the individual
ii) The ability of additional procedures to increase the
accuracy of the fact-finding
iii) The government’s interests
When does the contract clause apply?
- state or local interference with existing
contracts
