Constitutional Flashcards
Justiciability - Standing
Asks whether P is the proper party to bring a matter to court for adjudication. There must be:
- Injury in Fact: P must show he has or will imminently be personally injured; Injury usually in the form of deprivation of property or liberty interest; If seeking an injunction P must demonstrate the likelihood of future harm to himself (P will engage in that conduct and the statute will be enforced against them).
- Causation - P must show causal connection between conduct and injury.
- Redressability - P must show a favorable court decision is likely to remedy the injury.
Justiciability - Standing - 3rd Party Standing
There is no third party standing, P cannot assert claims of 3rd parties not before the Court. UNLESS P has standing themselves and:
- Special relationship between P and injured 3rd part (Dr./Patient; Bartender/Customers) or
- Injured 3rd party cannot or is unlikely to assert their own rights (infancy or incapacity)
Justiciability - Standing - Associational
Organizations have standing to sue for their members if:
- Individual members would have standing on their own
- Interests are germane to the organization’s purpose
- Neither the claim nor relief requires participation of individual members
Justiciability - Standing - Generalized Greivances
To have standing, P must not be suing in capacity as solely a “ citizen” or “taxpayer”.
UNLESS a taxpayer is challenging gov. expenditure as violating the Establishment Clause (but this does not apply where the gov. outright gives prop. to religious groups.)
Justiciability - Ripeness
Usually comes up when requesting declaratory relief. Asks whether the Court needs more facts before the case can be accurately decided.
P is not entitled to review of law before its enforcement unless P will suffer some harm or immediate threat of harm.
Justiciability - Standing - Conferred by Congress
Congress can confer standing via statute but can never eliminate case or controversy requirement.
P can have standing to enforce a federal statute if within zone of interests Congress meant to protect.
Justiciability - Mootness
P must have a live controversy at all stages of review. If injury already occurred and no exception applies the matter is MOOT.
If change in events after the filing of the lawsuit ends the P’s injury the case must be dismissed as moot UNLESS:
- Wrong capable of repetition but evading review (ex. a State retracts its abortion ban in response)
- Voluntary cessation by Defendant which can be resumes at any time
- Class Action Suits 0 as long as one member has an ongoing injury
Justiciability - Political Question
A Non-justiciable issue Constitutionally committed to another branch of gov. or inherently incapable of judicial resolution. Includes:
- Republican Form of Government Clause
- Foreign Policy
- Impeachment and Removal
- Partisan Gerrymandering
Supreme Court Review - State Court Opinion Reviewed Via Writ of Cert
Discretionary review proper where the matter concerns a federal statute, treaty, or state statute at issue.
The state decision must not be based on independent (decision is not based on federal case interpretation) and adequate (fully dispositive of the case) state law grounds.
The case will not be hears if it rests on State and federal law and SC reversal on fed law grounds will not change the result.
Supreme Court Review - US Court of Appeals Opinion on Writ of Cert
Discretionary review proper for all cases.
Supreme Court Review - 3 Judge District Court Opinion on Writ of Cert
Skips Court of Appeals, SC MUST hear the case.
Supreme Court Review - Original Jurisdiction
Over all cases affecting ambassadors, public ministers, consuls, or where a State is a party.
Lower Fed Court Review - Sovereign Immunity
11th Am. bars federal courts from hearing suits by private or foreign governments against the States. The State is not a party when Constitutionality of a statute is at issue. Sovereign Immunity bars suits against State gov. in state court even on federal claims.
Exceptions:
1. Waiver/Consent - must be explicit, never implied
2. Section 5 of the 14th Am. Congress can remove immunity for actions under this section but cannot authorize suits against states under other provisions.
3. Fed or State may sue state government but cannot sue the federal gov without its consent.
4. Suit against local governments.
Lower Fed Court Review - Suits Against State Officers
Allowed for:
- Injunctive Relief - action to enjoin officers from future conduct that violates Const. or Fed. law.
- Personal Damages - Money damages to be paid out of their own pockets. May not be sued if state treasury will be paying retroactive damages, ok if paying prospective damages from the State.
Lower Fed Court Review - Abstention
Federal Court will not hear a case to:
- Enjoin a pending state criminal court proceeding, except where the sate prosecution is conducted or filed in bad faith or with intent to harass
- Unsettled questions of state law, the court will abstain until state courts have time to settle the underlying questions.
Congressional Authority - Enumerated Powers
Every exercise of federal power must be traced back to a power enumerated in the Constitution. There is no general federal police power (except over Military, Indian Reservations, Federal Land, and D.C.).
Congressional Authority - Necessary and Proper Clause
Congress may enact all laws necessary and proper to carry out any power granted to any federal branch. This cannot support a law on its own, must be linked with another enumerated power.
Congressional Authority - Taxing and Spending Power
Congress may tax and spend for the general welfare.
Taxing Power is upheld if the action bears reasonable relationship to revenue product OR Congress has power to regulate the activity taxed.
Spending Power may be exercised to provide for the common defense and general welfare. Congress may attach reasonable conditions to expenditures.
Congressional Authority - Commerce Power
Congress has exclusive power to regulate all foreign and interstate commerce. Congress may regulate:
- Channels of IC (highways, internet)
- Instrumentalities of IC (persons/things; planes, trains, phones, stocks)
- Activities Substantially Affecting IC (looking at cumulative impact)
Congress cannot regulate INTRAstate commerce unless it can show it affects IC. States can regulate local aspect of commerce as long as not in conflict or preempted.
Congressional Authority - War and Related
Constitution give Congress power to declare war, raise and support armies and provide for a navy.
Economic regulations during and after war time period to remedy war time disruptions have been upheld under this power.
Congress can establish military courts and tribunals (may try civilian if war causes Fed courts to get backed up)
Congressional Authority - Power Over Citizenship
Congress may establish uniform rules of naturalization and denaturalization. Congress has plenary power over aliens. The exclusion of aliens is ok but resident aliens are entitled to notice and hearing.
Congressional Authority - Property Power
Congress can make rules and dispose of Fed. property. Congressional action in this regard is NEVER invalid, even if it benefits one over State over another. Eminent domain must be for purposes of effectuating an enumerated power under some Constitutional provision.
Congressional Authority - Investigatory Power
Both houses can investigate into any matter which Congress can legislate. Privilege may come up here if its a criminal proceeding.
Congressional Authority - Postal and Misc. Power
Congress grants Fed. gov. a monopoly (public or private) unless Congress consents. Congress may regulate but cannot fully restrict access to the mail privilege.
fed courts have exclusive jurisdiction over Bankruptcy, but some States conduct it if there is no conflict with a Federal court. Congress can also coin money and controls IP law.
Congressional Authority - Limits - 10th Amendment
All powers not granted to the Fed, nor prohibited to states, are reserved to the State or the People.
Congress cannot compel state regulatory or legislative action BUT Congress can induce State action by putting strings on grants as long as condition expressly states and relates to purpose of spending program (cannot be coercive).
Congress can prohibit harmful commercial activity by State gov. but cannot place an affirmative duty on a State.
Congressional Authority - Limits - Section 5 14th Amendment
Congress may not create new rights or expand the scope of rights BUT may act only to prevent or remedy violations of rights recognized by the Court and such laws must be “proportionate: and “congruent” to remedying Constitutional violations.
Congressional Authority - Limits - Delegation of Powers
Always upheld, NEVER excessive.
There is no limit on Congress’ ability to delegate its legislative power to executive agencies or the judiciary as long as intelligible standard are set and power is not uniquely confined to Congress.
Congress cannot take away or delegate executive or judiciary power to itself or its officers.
Line Item Vetoes - Unconstitutional - Pres must sign or veto in its entirety
Legislative Vetoes - Must have bicameralism (passage by both H and S) and presentment (give to Pres. to sign)
Congressional Authority - Limits - Speech and Debate Clause
Immunity for Fed. legislators for conduct that occurs in regular court of the Federal legislative process.
Executive Powers - Foreign Policy
Foreign Relations - Plenary power to represent US in day to day foreign relations.
Treaties - Agreement between US and foreign country negotiated by President and effective when ratified by 2.3 of Senate. (Treaties prevail over contrary State law; Whether treaty prevails over Fed law depends who came last, Treaties can never violate Const.)
Executive Agreement - Between US and Foreign Country effective when signed by Pres. and head of Foreign Country. (EA prevail over contrary State laws, loses to contrary Fed law and cannot be unconstitutional)
Executive Powers - Commander in Chief
Pres. has broad powers to use American troops in foreign countries, but splits the power with Congress. Pres. has no power to declare war but may act militarily in actual hostilities against US without Congressional declaration.
Executive Powers - Domestic Policy - Appointment Power
Pres. appoints with the advice and consent of the Senate: Ambassadors, other public ministers, consuls, justices of SC, federal judges.
Congress may vest appointment of inferior officers in the Pres., heads of department, or lower Fed. courts.
Congress may not give itself or its officers appointment power, cannot create a new federal agency by statute, and cannot limit the Pres. choice of diplomatic representatives.
Executive Powers - Domestic Policy - Removal Power
President may remove any executive branch office at will unless limited by statute.
Congress cannot prohibit but may limit removal if an office where independence from Pres. is desirable and good cause exists. (Ex. Congress cannot limit removal of a cabinet member)
Executive Powers - Domestic Policy - Impeachment
Pres., VP, Federal Judges, and officers of the US can be impeaches and removed by Congress for (1) treason, (2) bribery, (3) high crimes and misdemeanors.
Impeachment alone does not remove the person from office, needs (1) Accusation (via majority vote in the House) and (2) Conviction (via 2.3 vote of the Senate)
Executive Powers - Domestic Policy - Immunity
Pres. has absolute immunity to civil suits for money damages for any action while in office.
Does not apply to action taken before the Presidency.
Pres. aides that exercised discretionary authority in a sensitive area may share in immunity.
Executive Powers - Domestic Policy - Executive Privileges
Pres has privileges for papers and conversations but must yield to other important gov. interests
Executive Powers - Domestic Policy - Power to Pardon
Pres. can pardon those accused or convicted of federal crimes (but not civil judgments, state crimes, or impeachment).
Plenary power cannot be taken away by Congress but does not apply if person is impeached by the House.
Executive Powers - Domestic Policy - Veto Power
Act may still become law if veto is overridden by 2.3 vote of each body of Congress.
Pocket Veto - Pres has ten days to exercise veto power, but if he fails to act while Congress is out of sessions the bill is essentially vetoed.
Preemption - Express
Supremacy Clause of Article 6 provides the Constitution, and the laws and treaties made pursuant to it, are the supreme law of the land.
A law is expressly preempted if the Federal law expressly stats it is the exclusive law in the field (or gives that exclusive power to a Fed. agency, FTA, or the FCC).
Preemption - Implied
Occurs where the Federal law is silent on the issue of exclusivity.
If both the Fed. and State cannot be followed, the Fed. law preempts. States can set stricter standards unless Federally preempted).
If a State law impedes a Federal objective, Fed law preempts.
If Congressional intent is clearly to preempt state law, Fed law preempts.
Preemption - State Taxation of Fed.
States may not tax or regulate Federal gov. activity (intergovernmental tax immunity doctrine established by McCulloch v. Maryland), except where Congress has waived federal immunity.
Sates cannot take funds from the federal treasury, but they can tax Fed employees so long as the tax does not discriminate against Federal employees (Public Salary Tax Act of 1939.)
Dormant Commerce Clause
State or local law is unconstitutional if it places an undue burden on IC. Determined via balancing test based on whether the law discriminates against out-of-state persons/entities:
- Non-Discriminatory Laws: weigh burdens on IC against benefits to State Gov.
- Discriminatory Laws: Presumed to violate the DCC unless necessary to achieve an important gov. purpose.
Important means the State’s interest is something other than economic or its own benefit. Necessary means no less discriminatory alternative.
Dormant Commerce Clause - Market Participation Exception
The DCC does not prevent a State from preferring its own citizens if:
- State is action as a market participant by buying or selling products, hiring labor, or giving subsidies. Government Programs or government owned businesses may prefer the State’s own citizens.
- Does not apply to the Privileges and Immunities clause (cannot outright exclude non-state citizens).
Privileges and Immunities - Article 4
No State shall deny citizens of other states of the privileges and immunities it accords its own citizens. The essential question is whether the State law discriminates against noncitizens as to a Fundamental Right:
If no, then P&I does not apply but the law may still be invalidated by DCC if its impermissibly burdens IC.
If yes, the law violates P&I unless closely related to a a substantial government interest. (Different from DCC alone)
Privileges and Immunities - Fundamental Rights
FR are those which involve important commercial activities and civil liberties. These can include (1) the right to interstate travel, (2) employment, (3) contraception, etc.
Privileges and Immunities - 14th Amendment
No State shall deny any citizen the P&I of being a citizen. Rarely used, except in cases where a State is denying its citizens a right to travel across state lines and establish residency in a new state.
State Action Requirement
The Constitution generally protects against gov. action at any level (Fed, State, Local), not actions of private individuals (discounting the 13th Am.) UNLESS:
Significant State Involvement: Private Action is closely encouraged and supported by the State
Public Function Theory: Private actor is delegated a function traditionally reserved to States
Mutually Beneficial Relation: derived from unconstitutional behavior (e.g. state gets increased revenues and rents from privately owned restaurant that discriminates)
Scrutiny Standards - Strict Scrutiny
Applies where the law discriminates on its face or the motivation of the law is to discriminate (if facially neutral). For the law to be valid, the Government must prove its classification is necessary to achieve a compelling governmental interest. A classification is necessary if it is the least restrictive means and is narrowly tailored to serve the compelling governmental interest.
Applies to: (1) Race, (2) Alienage [State Gov.], (3) National Origin, (4) Voting, (5) Domestic Travel, (6) Privacy [including contraception, marriage, procreation], and (7) facially discriminatory laws implicating the DCC.
Scrutiny Standards - Intermediate Scrutiny
For the law to be valid, the Government must prove its classification is substantially related to an important gov. interest.
Applies to: (1) Gender, (2) Illegitimate Children, (3) Undocumented Alien Children, (4) Denial of P&I under Art. 4.
Scrutiny Standards - Rational Basis
For the law to be invalid, Plaintiff must prove classification is not rationally related to an important movement interest.
Applies to: (1) Age, (2) Alienage [Fed. Gov.], (3) Disability, (4) Sexual Orientation, (5) Everything else not SS or IS.
Due Process Clause - Procedural
Procedural DP under Article 5 (and applicable to the States under the 14th Amendment) protects persons against an intentional deprivation of life, liberty, or property without due process of law.
If life, liberty, or property are to be taken, what process is due a person? Courts use the Matthews balancing factors:
- Importance of interest to the person (the more important, the more process needed)
- Government interest/burden in efficiency (the more burdensome to provide protection , the less process needed)
- Value of procedural safeguards (more likely the gov. will make a mistake without the protections, the more process needed .)
DP rights may be waived if knowingly and voluntarily.
Due Process Clause - Substantive
Fundamental individual rights not spelled elsewhere in the Constitution. Gov’. may not infringe on fundamental rights (CAMPERD STOVF).
- Contraception - State cannot prohibit distribution of contraceptive, whether single or married.
- Abortion (Privacy) - No longer SS and abortion is not a fundamental right.
- Marriage (Privacy) - Right to enter into marriages is deemed fundamental.
- Parentage/Procreation - reproductive rights and child rearing, care, custody, and control are SS.
- Education (Private) - parents have a right to privately educate children outside of the public school system.
- Sexual Orientation - Government cannot criminalize same-sex sexual activity for lack of legitimate interest.
