Constitutional Law Flashcards
Justiciability
Whether a lawsuit can actually be adjudicated by a federal court as a case or controversy.
What Determines if There is a Case or Controversy
(1) What it requests (no advisory opinions)
(2) When it is brought (must be ripe and not moot)
(3) Who brings it (someone with standing)
Advisory Opinions
Federal courts may not render advisory opinions, which lack: (1) an actual dispute between adverse parties or (2) any legally binding effect on the parties
Ripeness - Rule
Federal courts may only decide controversies that are ripe for judicial review. Factors considered are (1) fitness of the issues for judicial decision (generally not fit for judicial decision if it relies on uncertain or contingent future events that may not occur as anticipated) and (2) the hardship to the parties of withholding court consideration
Ripeness - Application
Pre-enforcement review of laws (declaratory judgment actions) are generally not ripe, unless: (1) substantial hardship in absence or view and (2) issues and records are fit for review (i.e., issues are more legally based than factually based)
Mootness - Rule and Exceptions
Federal courts may only decide live controversies (i.e., P suffers ongoing harm) Exceptions: Though injury has passed, not moot if: (1) injury is capable of repetition yet evade review because of inherently limited duration or (2) Defendant voluntarily ceases activity, but may restart at will, or (3) In class actions, one P suffers ongoing injury (holdout P)
Mootness - Application
Controversy is live if: (1) In suit for injunctive or declaratory relief, challenged law or conduct continues to injury or (2) In suit for damages, P was not made whole
Standing
P must have standing to sue. Requirements:
(1) Injury
(2) Causation
(3) Redressability
Injury - What Constitutes Injury and Exceptions
Almost any harm that is concrete and particularized, NOT ideological objections or generalized grievances
*Requires both a particularized injury (an injury that affects the plaintiff in a personal and individual way) and a concrete injury (one that exits in fact)
(Citizen may not sue to force government to obey laws; Taxpayer may not sue over how government spends tax revenues; Official proponents of ballot initiative may not defend enacted measures)
Exceptions: Taxpayer challenge to own tax liability (particularized); Congressional spending in violation of Establishment Clause (but not executive spending)
Injury - When Injury Must Occur and Who Must Suffer Injury
When: must have already occurred or will imminently occur (injunctive/declaratory relief: must show likelihood of future harm)
Who: must be personally suffered by P rather than those not before the court (no third-party standing)
Third-Party Standing Exceptions
Close Relationship (e.g., parent on behalf of child): (1) P and 3P injured, (2) 3P unable or unlikely to sue, and (3) P can adequately represent 3P
Organizations (on behalf of members): (1) org and member have standing, (2) members’ injury related to org’s purpose, and (3) members’ participation not required (i.e., not seeking individualized damages)
Free Speech Overbreadth: (1) Substantial overbreadth in terms of law’s legitimate to illegitimate sweep, and (2) not commercial speech
Causation
P must show that the injury is fairly traceable to D
Redressability
P must show that a favorable court decision can remedy the harm (e.g., through money damages or an injunction)
Supreme Court Review - Final Judgment Rule
USSC only hears case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special statutory situations) a three-judge district court
Supreme Court Review - Independent and Adeqaute State Grounds (IASG)
USSC will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state law ground.
The state law grounds are adequate if they are fully dispositive of the case.
They are independent if the decision is not based on federal case interpretations of identical federal provisions.
Federal Legislative Power - Art. I, Sec. 8
Limit: enumerated powers. unlike states, Congress has not general police power to pass laws (except for federal land, Indian reservations, and D.C.)
Necessary and Proper Clause: Not a basis of legislative power. Allows Congress to choose any rational means to carry out an enumerated power, as long as means are not prohibited by the Constitution
Congress’ Enumerated Powers - Taxing and Spending
Congress may tax and spend to provide for the general welfare (includes any public purpose not prohibited by the Constitution, even if not within an enumerated power)
Spending conditions: “strings” must relate to purpose of spending and not violate Constitution and cannot be unduly coercive
Congress’ Enumerated Powers - Interstate Commerce
(broadest and most common basis for regulation) IC includes: channels of IC (highways, waterways, telephone lines, internet); instrumentalities of IC (planes, trains, automobiles, persons in IC); and substantial effect on IC in aggregate (even purely local activities)
Limits: (1) noneconomic activity in area traditional regulated by the states and (2) compelling participation in commerce
Congress’ Commerce Power v. Enforcement Power
Commerce power allows Congress to INDIRECTLY ban PRIVATE discrimination. But Congress may DIRECTLY ban STATE discrimination under 14A power to enforce the guarantee of equal protection
Congress’ Enumerated Powers - War and Related
Constitution gives Congress Power to declare war, raise and support armies, and provide for and maintain a navy
Congress’ Enumerated Powers - Other Powers
Citizenship, bankruptcy, federal property, patents and copyrights, post offices, coining money, territories and D.C.
Congress’ Delegation of Power
To agencies: may broadly delegate legislative powers as long as some intelligible principal guides exercise of delegated powers
To President: no line-item veto. rationale - violates bicameralism and presentment (giving bill in its entirety to the President to sign or veto)
To Congress: no legislative veto to void duly enacted laws without bicameralism and presentment (i.e., can’t give itself future power to alter/amend/repeal legislation short of passing another law)
Federal Executive Power - Domestic Powers
Enforcement: President has power (and duty) to execute laws
Inherent (implied) Presidential powers (Supreme Court generated scheme/tests):
Highest where it is authorized by Congress
Lowest where prohibited by Congress
Gray area where neither
Federal Executive Power - Foreign Powers
Congress alone has power to declare war.
President as Commander in Chief has broad discretion to deploy troops internationally to protect American lives and property (challenges are likely non-justiciable as a political question)
Federalism - 10th Amendment
10A: powers not granted to US or prohibited to the states, are reserved to the states or the people
General police powers: reserved to the states (local health, safety, and economic regulations receive RATIONAL BASIS review unless they burden a fundamental right or involve a suspect or quasi-suspect classification)
Anti-commandeering principle: Congress cannot compel states to enact or administer federal programs
Federalism - Supremacy Clause
Supremacy Clause of Art. VI makes federal law (Constitution, statutes, regulations, treaties, executive agreements) preempt inconsistent (conflicting) state and local laws
Federalism - Preemption
Express: Congress expressly says so
Implied: (1) Conflict (impossible to follow both federal and state law OR state law impedes federal law; (2) Field (extensive federal regulation indicates Congressional intent to “occupy the field”)
Dormant Commerce Clause
(“Negative Commerce Clause”) prohibits state laws that discriminate against or unduly burden interstate commerce
Privileges and Immunities, Art. IV
prohibits state laws that discriminate against out-of-state US citizens (in favor of in-state citizens) regarding: (1) important commercial activities (earning livelihood) OR (2) fundamental rights
Privileges or Immunities of 14th Amendment
Fundamental right to interstate travel (right to enter/leave a state and equal treatment once become permanent residence of state)
NO fundamental right to international travel
Right to petition the federal government
Constitutional Framework for Protection of Individual Liberties - Application and Incorporation
Except for 13A ban on slavery, Constitution applies ONLY to government action, not private conduct.
Most protections have been incorporated against (applied to) states and their political subdivision through the Due Process Clause of 14A
State Action
state law; state officials acting officially (even if unlawfully)
Public Function: state action exists when private party performs function done by government traditional AND exclusively.
State Involvement: significant state involvement in challenged private conduct may count as state action (e.g., assistance, encouragement, supervision, entwinement, or approval)
Procedural Due Process - Provisions and General Rule
Provision:
5A DPC applies to FEDERAL government
14A DPC applies to STATES AND LOCALITIES
General rule: individual has right to a fair process when government acts to deprive of life, liberty, or property
“Deprivation”: intentional (or perhaps reckless) rather than negligent
Procedural Due Process - Define “Liberty”
Physical freedom (e.g., institutionalization, deportation) Constitutional rights (e.g., parental rights) NOT: mere harm to reputation
Procedural Due Process - Define “Property”
Real and personal, tangible and intangible Government entitlement (benefit) to which an individual has a reasonable expectation of continued receipt (e.g., welfare benefits, public education, government licenses, tenured employment or employment for a term of years, but NOT at-will employment)
Procedural Due Process - If Deprived, What Process was Due?
(1) Notice: reasonable calculated to inform person of deprivation
(2) Hearing (pre-deprivation generally preferred unless impracticable) Balancing test determines the nature and extent of procedures, considering: (a) importance of the interest to the individual, (b) risk of error through procedures used, (c) accuracy gained from additional procedures, (d) burden on government (e.g., inefficiency and costs)
(3) Neutral Decision-maker: no actual or serious of bias
Substantive Due Process - Overview
Enumerated rights are specified in Constitution or Amendments. Unenumerated rights are substantive component of liberty protected by 14A DPC against states/localities and 5A DPC against federal government.
A enumerated/unenumerated right is FUNDAMENTAL if it is:
(1) deeply rooted in this Nation’s history and tradition (most commonly used) or
(2) implicit in the concept of ordered liberty (right is essential for a free society) or
(3) identified as fundamental by reasoned judgment and new insight (most recent test)
Due Process and Equal Protection Analysis
Denying everyone a fundamental right: Substantive DP ONLY
Denying some a fundamental right: Substantive DP AND Equal Protection
Unenumerated Fundamental Rights - Marriage (Divorce)
Substantial interference with right to marry is necessary to trigger STRICT SCRUTINY.
Interracial Marriage: bans on interracial marriage trigger and fail strict scrutiny under Due Process and Equal Protection Analysis.
Same-Sex Marriage: fundamental right to marry extends to same sex couples, denial of which violates Due Process and Equal Protection.
*Reasonable requirements (majority age, proper identification) to protect rather than hinder right to marry are upheld under RATIONAL BASIS
Unenumerated Fundamental Rights - Interstate Travel
(14A Privileges or Immunities)
Right to enter and leave a state
Equal treatment once become resident of state (residency requirement to be eligible for welfare benefits they would’ve received in prior state of residence is UNCONSTITUTIONAL)
NO fundamental right to international travel
