Constitutional Law Flashcards
Preliminary Considerations –> Valid Case/Controversy
Reqs come from Art III Section 2, which limits jdx of fed cts to “cases” and “controversies” (AKA justiciability questions).
Case or Controversy analysis (RAMPS)
- Ripeness
- Abstention
- Mootness
- Political Questions
- Standing
Preliminary Considerations –> Valid Case/Controversy - Special Case Rule for SCOTUS
Adequate and Independent State Grounds
- —> Although a state ct decision may involve a fed question, if the state ct judgment can be supported on an adequate and independent state ground, SCOTUS will not take jdx.
- —> A state law ground will usually be adequate if it invalidates something (a state law or a K); on the other hand, a state law will usually not be adequate if the law or K is upheld under both state and fed law.
- —> To do so would be tantamount to rendering an “advisory opinion.”
- —> Applies only to SCOTUS.
Exception:
If the state ct says, in interpreting the state constitution, it was merely copying the fed USC, then no clear, independent state ground exists; so the doctrine will not apply and SCOTUS will hear the case.
Preliminary Considerations –> Standing: Individuals (and Taxpayers)
Article III reqs a person to show:
(1) INJURY IN FACT (to the person bringing the law suit);
—> P must show a direct and personal injury (actual or imminent) caused by the action that he is challenging.
—> Examples of individuals who lack standing:
o Legislator who doesn’t like legislation passed.
o Private individual who merely believes law is unconstitutional.
o Tax-payer who does not want tax dollars used to enforce a law he believes is unconstitutional.
—> Exception: A taxpayer can challenge a law believed to violate the Estab Clause of the 1A.
(2) CAUSATION
- –> Injury was caused by the challenged action; and
(3) REDRESSIBILITY
- –>P must show that he will benefit from the remedy sought in the litigation and that the ct can provide that remedy.
Preliminary Considerations –> Standing: Third-Parties and Organizations
A litigant lacks standing to assert the rights of 3rd parties not before the ct, EXCEPT under the following conditions:
- SPECIAL RELATIONSHIP EXCEPTION
SCOTUS has permitted a P, who is not the party injured, to raise the USC rights of a 3rd party, who is in fact injured, if the following 2 conditions are satisfied:
(1) A special relationship exists between the P and 3rd party because of the CONNECTION between the INTERESTS of the P and the USC rights of the 3rd person; and
(2) The 3rd party is UNABLE or finds it DIFFICULT (some incapacity; ex: privacy) to bring suit on his own behalf. - ORGANIZATION/MEMBER EXCEPTION
An organization has standing to assert the claims of its members, even if the association has not suffered any injury itself, if:
(1) The members would have STANDING to sue in their own right;
(2) The interest asserted is germane to the association’s PURPOSE; and
(3) Neither the claim asserted nor the relief requested would REQUIRE the individual members to PARTICIPATE in the lawsuit.
Preliminary Considerations –> Timing: Ripeness
Bars consideration of claims before the claim’s issue has fully developed.
- —> The controversy must be ripe for decision because otherwise the fed cts will decide USC issues before it is necessary to do so.
- —> Usually cases requesting declaratory judgment on the exam.
Preliminary Considerations –> Timing: Mootness
If a controversy or matter has been resolved, then the case will be dismissed as moot.
- —> There is no longer a controversy for the ct to resolve.
- —> Usually cases requesting declaratory judgment on the exam.
Exception (use the mnemonic CRYER)
- —> The case will not be dismissed for mootness if the injury is “Capable of Repetition, Yet Evading Review.”
- —> Meaning that it is a practical impossibility for the case to be fully heard or go up on appellate review before the P’s claims, or the claims of other individuals who are members of a class action become moot.
Preliminary Considerations –> 11A Issues
11A provides STATE sovereign immunity.
—-> Private individuals cannot sue states for $ damages in any ct (key word : money damages)
Exceptions:
(1) Fed suits brought by one state against another state;
- —> Suits brought by the fed govt against a state;
(2) Subdivisions of a state (e.g., cities, towns, and counties) do NOT have immunity;
(3) A private citizen may sue a state requesting an injunction;
(4) A state may consent to suit in fed ct if it clearly waives its 11A immunity (the state must do so expressly and unequivocally) or
(5) Congress can authorize individual citizen private suits involving $ damages to compensate for state violations of post-Civil War 13A, 14A, 15A pursuant to its enforcement powers.
State Action
State-Action Requirement
- —> The P must show that there is govt’al action.
- —> USC rights can be violated only by govt’al actors, not by private actors with the exception of the 13A and the specific situations below.
Two Exceptions
(1) Public-Function Theory
- —> Where a private entity is carrying on activities traditionally performed by the govt.
- —> This theory is AKA entwinement.
(2) Significant State Involvement Theory
- —> Where a private party’s action is closely encouraged and supported by the state, the private party’s action can be treated as action by the govt.
- —> This exception is AKA entanglement.
13A
- –> Does not have a state action req.
- –> Applies to private individuals.
Source of Power Issues –> States: 10A
The powers not delegated to the U.S. by the USC, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
—> Although the 10A does not specify what these “powers” may be, SCOTUS has ruled that laws affecting family relations (such as marriage, divorce, and adoption), commerce that occurs within a state’s own borders, and local law enforcement activities, are among those specifically reserved to the states or the people.
Source of Power Issues –> Federal Government: Congress/Legislature - Three Sources For Congressional Power
(1) Enumerated powers
- —> To collect taxes and spend $ for the general welfare, to borrow $ on the credit of the U.S., regulate commerce, declare war, and to raise and support the army, navy, and militia. (It’s all about power and money = P)
(2) Enabling clauses of the 13A, 14A, and 15A give Congress the power to enforce those amendments by “appropriate legislation.” (Enabling = E)
(3) Necessary and Proper Clause
- —> Gives Congress the implied power “to make all laws which shall be necessary and proper” to carry out an enumerated power. (What is necessary to get stuff done = N)
- —> The Necessary and Proper Clause as an answer by itself will usually be incorrect; if it’s the Necessary and Proper Clause in conjunction w/ another power, it is more likely to be a right answer.
Source of Power Issues –> Federal Government: Congress/Legislature - Commerce Power
Congress can regulate:
(1) Channels of interstate commerce (i.e., highways, waterways, and air traffic);
(2) Instrumentalities of interstate commerce (i.e., cars, trucks, ships, airplanes); and
(3) Activities that “substantially affect” interstate commerce.
- —-> Substantial Effect: Congress has the power to regulate any economic activity, whether carried on in one state or many, which has a substantial effect upon interstate commerce.
- —-> Cumulative Effect Doctrine: Congress can regulate activities that have a tiny effect on interstate commerce independently, when all such activities are put together, a substantial cumulative effect upon interstate commerce will result.
Limitations:
- —-> Cannot use the power to regulate intrastate non-economic activity.
- —-> Exception: regulating intrastate non-economic activity with a “comprehensive scheme.”
The commerce power cannot overcome state sovereign immunity—i.e. the Commerce Clause does not trump the 11th A.
- —-> For example, Congress cannot use the commerce power to create a private cause of action for money damages against a state.
- —-> However, it can bar racial discrimination by private parties in activities connected with interstate commerce, (Atlanta Hotel case) but it cannot use the Commerce Clause as the basis for barring racial discrimination by a state and allow private parties to sue to enforce that law by seeking money damages.
- —-> But recall, Congress can use the post-Civil War enabling powers of the 13, 14, 15A to achieve such a law.
Source of Power Issues –> Federal Government: Congress/Legislature - Taxation Power
Congress has the power to impose and collect taxes in order to pay debts and spend for the general welfare.
A congressional act purporting to be a “tax” should be upheld as a valid exercise of the taxing power if:
(1) It raises revenue (objective test);
(2) It was intended to raise revenue even if it doesn’t (subjective test); or
(3) Congress has the power to regulate the activity that’s being taxed (regulatory test).
Source of Power Issues –> Federal Government: Congress/Legislature - Spending Power
Congress has the power to spend for the general welfare.
—> Do not say that something is unconstitutional bc it is not for the general welfare.
Congress can use its spending power to get around limits on its regulatory power.
- –> It may pass a law offering $ to states/individuals in exchange for “x”.
- –> Often, “x” is not something that Congress could order the state or individual to do directly.
Congress may place a condition on receipt of federal funds by a state if:
(1) The spending serves the general welfare;
(2) The condition is unambiguous;
(3) The condition is related to the fed program (relatedness);
(4) The state is not required to undertake unconstitutional action; and
(5) The amount in question is not so much that the state is “coerced” into accepting the funds.
Source of Power Issues –> Federal Government: Congress/Legislature - War and Defense Powers
Congress may DECLARE war, raise and support ARMIES, provide and maintain a NAVY, and organize, arm, discipline, and call forth a MILITIA.
During wartime, Congress has the power to:
(1) Activate the military DRAFT and selective service;
(2) Initiate WAGE, PRICE, and RENT CONTROL of the civilian economy; and
(3) Exclude civilians from certain restricted areas.
Congress can establish military cts to gain jdx over members of the armed forces, conduct ct-martial proceedings, and try enemy combatants.
—-> A question might ask what rights a terrorist has with respect to detention: both US citizens and non-U.S. citizens within the US (or U.S. territories) are entitled to Due Process rights.
Source of Power Issues –> Federal Government: Congress/Legislature - Immigration Powers
In regard to immigration law, Congress, under the Plenary Power Doctrine, has the power to make immigration policy subject to limited judicial oversight.
- –> The Executive Branch is charged with enforcing the immigration laws passed by Congress.
- –> The doctrine is based on the concept that immigration is a question of national sovereignty, relating to a nation’s right to define its own borders.
- –> Courts generally refrain from interfering in immigration matters.
Source of Power Issues –> Federal Government: Congress/Legislature - List of Powers
- Commerce
- Tax
- Spend
- War
- Alienage
- Enabling Clause
Source of Power Issues –> Federal Government: Executive - Generally
Enforcement of Laws
—-> President can enforce but not create laws.
But See: Congressional Delegation
- –> Congress can create an executive agency (i.e., FDA) and give the agency some legislative power (to create regs) that will prevail over inconsistent state law.
- –> Limitation: Congress can delegate power so long as there is some “intelligible principle” that guides the agency.
Source of Power Issues –> Federal Government: Executive - Appointment Power
The President appoints “high-level officials” such as Ambassadors and Cabinet members with the advice and consent of the Senate.
—-> Congress can delegate appointment of “inferior” officers (anyone who has a superior) to:
• the President;
• the judiciary; or
• the head of an executive department.
Source of Power Issues –> Federal Government: Executive - Veto Power
Veto Process
- —> Once Congress has passed leg by majority vote in each house, the Pres must sign the bill for it to become law.
- —> If the President vetoes it, Congress must override the veto.
- —> If the President takes no action within 10 days, it becomes law.
Pocket Veto
—-> If the bill is presented to the President less than 10 days before the end of a legislative session, then the President can “pocket veto” it.
Congressional Override
—-> 2/3 vote in both the Senate and House.
Line-item Veto
- —> A Pres cannot cancel particular provisions of new fed leg.
- —> The President has to either accept a bill or veto it as a whole.
Source of Power Issues –> Federal Government: Executive - Military Power
The President is Commander in Chief of the military.
Military Powers
- —> Congress has the power to declare war.
- —> If Congress has not done so, the President’s powers are limited to using military force in response to a surprise attack upon the US.
- —> If the President and Congress disagree, the President prevails only with respect to battlefield tactical decisions.
Source of Power Issues –> Federal Government: Judiciary
The only thing a court can do is to hold a federal law unconstitutional.
- —> Courts cannot enforce the judgments, so they need cooperation from the official whose conduct they believe is unconstitutional.
- —> Most often the president will comply.
SCOTUS
Original jdx over cases involving ambassadors, foreign diplomats, and states.
—-> Congress cannot enlarge or restrict the SCOTUS original jdx.
—-> Appellate jurisdiction exists where the USC or a fed law is at issue.
Source of Power Issues –> Federal Government: Congress Power Over the Courts
Lower courts:
—-> Constitution grants Congress power to create courts inferior to the Supreme Court and prescribe their powers (i.e., change jurisdiction, eliminate, or create courts).
Supreme Court:
—-> unsettled how much power Congress has over the Supreme Court.
Congress cannot take a case from appellate jdx and move it to original jdx (Marbury v. Madison).
Limits on State Power –> Preemption
Under the Supremacy Clause, if Congress enacts legislation with the intention of preempting state law, the congressional regulation will control.
Limits on State Power –> Dormant Commerce Clause
States cannot discriminate against out-of-state economic actors.
- —> If a state law discriminates on its face against out-of-state goods or economic actors, the state must show:
(1) The regulation serves a compelling interest; and
(2) The regulation is necessary to achieve the compelling interest.
Rule
- —> State laws that regulate interstate commerce even-handedly to effectuate a legitimate local public interest will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.
- —> The Dormant Commerce Clause applies to state taxes.
Exceptions
- —> Congress may affirmatively authorize states to legislate in areas that would violate the Dormant Commerce Clause.
- —> When states act as market participants, they may discriminate between in-state and out-of-state businesses.
Limits on State Power –> Contracts Clause
“No state shall…pass any…Law IMPAIRING the OBLIGATIONS of Contracts” [Article I, Section 10].
—> The K Clause applies only to state legislation, and not to state ct decisions or to the fed govt.
When determining whether a K may be modified, cts will consider:
(1) The SEVERITY of the IMPAIRMENT; and
(2) The IMPORTANCE of the PUBLIC INTEREST to be served.
Limits on Federal Power
10A
Limits on Both State and Federal Power –> Individual Rights: 1A Included Rights
- Speech
- Religion
- Association
- Press
Limits on Both State and Federal Power –> Individual Rights: Freedom of Speech/Expression - Generally
The 1A provides “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
—-> The 1st Amendment was held applicable to the states through the DPC of the 14A.
General principle:
The GOVT may not interfere w/ or distort the marketplace of ideas, especially w/ respect to political speech.
Limits on Both State and Federal Power –> Individual Rights: Freedom of Religion - Generally
The 1A provides: “Congress shall make no law respecting an ESTABLISHMENT of religion, or prohibiting the free EXERCISE thereof.”
—-> Applies to both the federal govt and the states through the 14A.
