Constitutional Law Flashcards
What article of the constitution grants judicial power to the Supreme Court and such inferior courts that Congress made establish?
Article 3
What are the cases and controversies requirements that act as limits on the federal judicial power?
No advisory opinions, standing, ripeness, mootness, political question doctrine.
Can a federal court issue an opinion on abstract or hypothetical questions?
No. There must be a real and immediate present or future danger to the interests of the parties.
Can federal courts issue declaratory judgment?
Declaratory judgment are permitted. A declaratory judgment is a decision by a court on what the legal effect of a proposed course of conduct by one or both of the parties would be. Even with declaratory judgments, however, a specific, concrete controversy must exist.
A plaintiff must have appropriate standing to file a suit in federal court. What does standing generally require?
Injury, causation, redressability.
The fundamental question driving standing is whether the plaintiff is the proper party to bring the lawsuit.
Redressability= plaintiff must have a concrete stake in the outcome of the case such that a favorable decision will likely remedy the injury.
Third-party standing is not permitted unless the plaintiff independently meets the other standing requirements and
- Has a close relationship with the injured third party
- The injured third-party is unlikely to be able to assert her rights or
- An organization may Sue on behalf of its members if individual members have standing to sue, interests are related to the purpose of the organization, and neither claims or relief requires participation of individual members.
Is there standing in fed court for general grievances?
The Supreme Court has denied standing for general grievances.
What is a general grievance?
A general grievance is a Plaintiff suing solely as a citizen or taxpayer interested in having the government obey the law.
What is the exception to the rule that there is no standing for general grievances
A taxpayer may challenge congressional taxes or expenditures pursuant to a federal statute as violating the establishment clause
What are the exceptions to the general rule that there must be a live controversy at all stages of review?
- Capable of repetition yet evading review
- Voluntary cessation (D free to resume)
- Class action suits (class action will jot be dismissed as long as at leadt one member has ongoing injury)
What types of cases will be dismissed as non-justiciable political questions?
- Republican form of government clause of article IV
- Challenges to the president’s foreign policy
- Challenges to impeachment and removal process
- Congressional standing qualifications
What types of cases are not considered political questions
- legislative apportionment
- gerrymandering
- Presidential papers and communications
What is abstention
Abstention is when a federal court has jurisdiction but the court nevertheless refrains from exercising that jurisdiction.
When disposition of a case rests on unsettled questions of state law, wil federal courts resolve constitutional challenges?
Federal courts will temporarily abstain from resolving constitutional challenges when disposition of a case rests on unsettled questions of state law.
Over what kind of cases does the Supreme Court have original jurisdiction?
The supreme court has original jurisdiction over controversies between state governments and actions involving ambassadors. The Supreme Court has only appellate jurisdiction over other kinds of cases.
Congress has permitted federal district courts to also exercise original jurisdiction over
All actions within the supreme court’s original jurisdiction except for those between states. This means that the lower federal courts can also exercise jurisdiction over actions involving ambassadors.
What are the limits on the supreme court’s appellate jurisdiction?
- Generally, the Supreme Court may only hear a case after there has been a final judgment.
- Congress has the authority over the appellate jurisdiction of the supreme court and can strip the Supreme Court of its appellate jurisdiction to hear particular types of cases but Congress cannot exercise this power in a manner that interferes with the establishment of a supreme and a uniform body of federal constitutional law.
What is the documentation sent to the Supreme Court to request that the Supreme Court review a case
Writ of Certiorari
Can the Supreme Court deny a writ of Certiorari?
The Supreme Court has complete discretion and deciding whether to grant a writ of certiorari and hear a case on its merits.
The Supreme Court may only review final judgments and decrees from the highest state courts if
The case calls into question the constitutionality of a federal law, federal treaties, or state law, or whether a state law violates a federal law.
Does the Supreme Court have appellate jurisdiction over decision by the highest court of a state when that decision is supported by state law grounds that are independent of federal law and adequate to sustain the result in the case?
No
When does a Supreme Court have mandatory appellate jurisdiction?
The Supreme Court must hear all cases that come before the court on direct appeal. However, the only permitted direct appeal to the Supreme Court is a decision by a three-judge federal District Court panel granting or denying injunctive relief.
What is the 11th amendment limitation on federal court review?
The 11th amendment prohibits a federal court from hearing suits against a state government commenced by a private citizen or foreign government
Does the 11th amendment bar actions against state governments for injunctive or declaratory relief where the state is named as a party?
Yes
Does the 11th amendment bar actions for damages against state governments, including suits by a citizen against her own state?
Yes
Does the 11th amendment bar actions against state officials that would result in retroactive damages being paid from the state treasury?
Yes
Does the 11th amendment bar action against a state government that would result in the divestment of the state’s ownership of land?
Yes
A state government can be named as a defendant in federal court only under the following exceptions:
- The defendant state expressly consents and waives sovereign immunity.
- Actions against state officials for injunction to stop the violation of a federal law.
- Actions for damages against state officer for personal liability if damages will be paid from the officer’s own pocket
- Actions against local governments or municipalities
- Actions by the United States or other state governments against a state
- Actions under section 5 of the 14th amendment, which gives Congress the power to enforce the provisions of the 14th amendment by appropriate legislation.
- Bankruptcy proceedings
When is congressional legislation appropriate within the meaning of section 5 of the 14th amendment
Congressional legislation is appropriate within the meaning of section 5 if
- It seeks to prevent or remedy actions by state or local governments that violate provisions of the 14th amendment and
- Its requirements are congruent with and proportional to the 14th amendment violation it addresses
States enjoy sovereign immunity from certain lawsuits that is not derived from the 11th amendment but instead is rooted in state sovereignty. What types of suits are barred by the doctrine of sovereign immunity?
The doctrine of sovereign immunity bars private suits against state governments in state court even when the suit is based on federal law.
The doctrine of sovereign immunity bars private complaints against a state before a federal administrative agency.
When a court reviews the constitutionality of a state action, it will likely apply one of three key standards of review. What are the standards?
Rational basis, intermediate scrutiny, strict scrutiny
To survive rational basis review, the challenged action must be found to be
Rationally related to a legitimate government interest
To survive intermediate scrutiny, the challenged action must be found to be
Substantially related to an important government purpose
To survive strict scrutiny, be challenged action must be found to be
Necessary to achieve a compelling government purpose. There are no reasonable non-discriminatory means that would achieve the same objective.
What article of the constitution sets forth the legislative power
Article I
States and local governments have general police power, but there is no general federal police power except for
The military, federal lands and territories, Native American reservations, and the District of Columbia.
What is the necessary and proper clause
Under the necessary and proper clause, Congress may use any means not prohibited by the constitution to carry out its authority.
Taxing and spending power?
Congress has the power to tax and spend for the common defense and general welfare
Absent a specific restriction, taxes will be upheld if
The taxes bear some reasonable relationship to revenue production, or if Congress has independent authority to regulate the activity being taxed. Taxes are generally upheld.
What are some limits on the taxing power
- Indirect taxes must be uniform
- Direct taxes must be in proportion to national census.
- No power to tax exports
Indirect taxes?
Taxes on an activity
Direct taxes?
Taxes imposed directly on property or a person
What if Congress expressly labels a tax measure as a penalty
The fact that Congress expressly labels a measure as a penalty does not prevent the measure from being upheld as a valid tax if the measure actually functions in a manner that resembles a tax
The commerce clause?
Article 1, section 8 states that Congress has the power to regulate commerce with foreign nations, among the states, and with Native American tribes. The commerce clause grants Congress the exclusive power to regulate the channels and instrumentalities of commerce and other activities that have a substantial effect on interstate commerce.
Channels of interstate commerce?
The places were commerce occurs, e.g. highways, waterways, Internet
Instrumentalities of commerce?
Anything that facilitates commerce, e.g. trucks, planes, Internet
Congress is permitted to regulate intrastate activity only if
Such activity is economic or commercial and there is a rational basis for concluding that, in the aggregate, the activity substantially affects interstate commerce. The Supreme Court has held that even ostensibly personal intrastate economic activities can this be regulated under the commerce clause.
May Congress use its power under the commerce clause to compel someone who is not already active in a commercial market to enter that market by requiring that person to purchase a product?
No
Congress is prohibited from regulating non-commercial or noneconomic activity unless
Congress can factually demonstrate that the activity has a substantial economic affect on interstate commerce. Substantial economic effect, however, cannot be based on cumulative impact.
Impeachment and removal power?
Congress has the power to impeach and remove the president, vice president, federal judges, and other officers of the United States for treason, bribery, or high crimes and misdemeanors.
What does impeachment require?
Impeachment by the house requires a majority vote. But impeachment does not remove the president, vice president, federal judge, or other officer of United States from office.
What does removal from office of an impeached official require?
Conviction in the Senate requires 2/3 vote. Only then will an impeached official be removed from office.
War powers?
Congress has the power to declare war, tax and spend for the national defense, institute economic or social control during wartime, and establish military courts and tribunals.
Property power?
Congress has the power to dispose of and make rules for territories and other properties of the United States, e.g. prohibiting hunting on federal land.
Power over citizenship?
Congress has the power to establish a uniform rule of naturalization. Congress also has exclusive control over naturalization and denaturalization, which the Supreme Court has determined gives Congress plenary power over aliens. Although the constitution gives Congress plenary power to control immigration, states may exercise their police powers to regulate the conduct of aliens within their borders, unless the regulation is preempted by federal law or otherwise violates the Constitution.
Congress is prohibited from taking away the citizenship of any citizen without her consent. As such a loss of citizenship may only occur if:
- Fraud in naturalization process (though technically not loss)
- Voluntary relinquishment of citizenship
Can aliens be denied entry for any reason
Yes. Aliens have no rights to enter the United States so they can be denied entry for any reason.
Must aliens be provided with notice and hearing prior to deportation?
Resident aliens must be provided with notice and hearing prior to deportation.
Power to regulate elections?
Congress has the power to protect eligible voters from discrimination in any state or federal election.
The 15th amendment prohibits discrimination against a voter based on
Race, color, or previous condition of servitude.
The 19th amendment prohibits discrimination against a voter based on
Gender.
The 24th amendment prohibits discrimination against a voter
Based on payment of a poll tax.
The 26th amendment prohibits discrimination against a voter
Based on age.
Voters rights act
Provides for sanctions for voter discrimination
Speech or debate clause?
Members of both houses of Congress shall be privilege from any liability for any speech or debate that takes place in either house.
Exceptions: Treason, felony, breach of the peace. Bribes. Speech is made outside of Congress. Republication of defamatory statements originally made in Congress.
Power to borrow money?
Congress has the power to borrow money on the credit of the United States
Postal power?
Congress has the power to establish post offices and post roads. This power has been interpreted as giving Congress monopoly power. Congress make validly classify and place reasonable restrictions on the use of mail but may not deprive any citizen or group of citizens of the general privilege to use the mail or regulate the mail in a manner that violates the first or fourth amendments.
Power to coin money and fix weights/measures
Congress has the power to coin money and regulate the value thereof. Congress also has the power to fix the standard for weights and measures.
Bankruptcy power?
Congress has the power to establish uniform laws on the subject of bankruptcies throughout the United States. Note, however, that this power is non-exclusive and states may reg in bankruptcy so long as the state bankruptcy laws do not conflict with the federal rules.
Patent and copyright?
Congress has the power to regulate and control patents and copyrights
Admiralty?
Congress has the power to regulate all navigable waterways
Can congress requires states to enact laws or to administer federal law? Why?
The Supreme Court has held that the concept of federalism embedded in the 10th amendment disables Congress from requiring states to enact laws or to administer federal law.
10th amendment?
All powers not granted the United States, nor prohibited to the states, are reserved to the states or the people.
Congress cannot compel state legislative or regulatory activity, but may induce state action via strings on grants when
- Conditions must be expressly stated
- Conditions must relate to the purpose of the program AND
- Pressure must not turn into compulsion
May Congress prohibit harmful commercial activity by state governments
Yes
Congress may delegate legislative powers to the executive or judicial branch as long as
Intelligible standards are set and the power is not uniquely confined, e.g. the power to declare war or impeach
Can congress delegate the power to enforce the laws to itself or its officers
Congress is prohibited from delegating the Power to enforce the laws to itself or its officers. As such, Congress may not appoint members of a body with enforcement powers.
What is bicameralism
Passage by both the House and the Senate
What is presentment
Presenting a bill to the president to sign or veto in its entirety
What is a legislative veto
The legislative veto is an attempt by Congress to overturn an executive action without bicameralism or presentment. Legislative vetoes of executive action are unconstitutional. Congress may overturn the action of the executive branch only by enacting a statue.
What article sets forth the executive power
Article II
What is a treaty
A treaty is an agreement between the United States and a foreign government
Requirements for a treaty
Treaties must be negotiated by the president and ratified by 2/3 of the Senate
If a treaty conflicts with state law what law prevails
Treaties are federal law and therefore preempt conflicting state law under the doctrine of federal preemption
If a treaty conflicts with federal law which prevails?
The one adopted most recently prevails
If a treaty conflicts with the US constitution what prevails
A treaty that conflicts with the US Constitution will be declared invalid under the supremacy clause
What is an executive agreement?
An executive agreement is an agreement between the United States and a foreign country that may be used for any purpose
What are the requirements for an executive agreement
Executive agreements become effective when signed by the president and head of the foreign nation. Unlike a treaty, no Senate ratification is required for an executive agreement.
If an executive agreement conflicts with state law what law prevails
The executive agreement prevails over conflicting state laws
President’s foreign affairs powers
Treaties, executive agreements, deployment of troops overseas
President’s domestic powers
- Take care clause
- Appointment power
- Removal power
- Presidential immunity
- Executive privilege
- Presidential pardon
- Veto power
Take care clause
While the president does not have the power to make the laws, the president has a duty to take care that the laws be faithfully executed, i.e., the president has no inherent constitutional authority to suspend the enforcement of the laws.
President’s appointment power?
The president appoints all ambassadors, other public ministers, and consuls, judges of the Supreme court, and all other officers of United States, whose appointments are not otherwise provided for with the advice and consent of the Senate. Any effort by the legislative branch to limit the president to a list of nominees violates the president’s power to nominate principal officers.
Does the president appoint inferior officers?
Congress may vest the appointment of inferior officers in the president alone, in the lower federal courts, or in the heads of executive departments.
What are inferior officers?
Inferior officers are those who may be fired
Can congress delegate appointment powers to itself or its officers?
No
President’s removal power?
Unless the removal power is limited by congressional statute, the president has the power to remove any officer of the executive branch.
Congress may limit the president’s removal power if
- The office is one in which independence from the president is desirable AND
- Removal is not entirely prohibited
Presidential immunity?
The president has absolute immunity from civil suits for monetary damages for actions taken while in office. There is no such presidential immunity for actions taken prior to taking office, however.
Executive privilege?
There is an executive privilege for presidential memos and conversations, but this privilege must yield to other important government interests.
Presidential pardon?
The president has the power to pardon any person accused or convicted of federal crimes. This applies only to criminal liability and applies before, during, and after trial. The president may not pardon a person for offenses that resulted in impeachment.
Veto power?
Every act of Congress must be approved by the president before taking effect unless the veto is overridden by 2/3 vote of both the House and the Senate.
Can a president veto part of a bill and sign the rest into law?
No. Line item vetos are unconstitutional.
Pocket veto?
If the president fails to exercise her veto power within 10 days, the bill becomes a law if Congress is in session or it is automatically vetoed if Congress is not in session.
Tripartite formula of the steel seizure case
Under the tripartite formula, the president‘s power is at its Apex when he acts pursuant to power given him by Congress. It is lessened if there is no congressional legislation on the matter. And it is at its lowest when he is acting in the face of congressional legislation affirmatively prohibiting the president from acting. The US Supreme Court has said that when the president acts in the face of congressional disapproval, he may do so only if the power he exercises is vested in him alone by the constitution and denied to Congress. Where he acts in the face of congressional Silence on a matter, the action will likely be approved the act is within the president’s power.
What article provides that the constitution and law made pursuant to it are the supreme law of the land?
Article VI
A state may regulate more extensively than a federal statute so long as
This does not frustrate the objective of the federal statute.
Express preemption?
Express preemption occurs when the federal law expressly states that it is the only regulation allowed and state regulation is prohibited. The federal statute will expressly state that federal law is exclusive in the area. Note, in the environmental law context, it is acceptable for states to establish standards that are stricter than federal law, unless clearly prohibited by Congress.
Implied preemption Can occur In one of three ways. What are they?
- If the federal law is in direct conflict with state law, the state law will be invalidated.
- A state law will be invalidated if it substantially interferes with a federal objective. For example, federal employees are immune from state laws that interfere with their obligation to carry out an authorized function.
- If Congress clearly conveys an intent that federal law be the only source of regulation in a given issue area than any state law in that area is preempted
May states tax federal government activity?
States may not tax federal government activity. It is unconstitutional to pay state tax out of the federal treasury.
May states regulate federal activities?
States may not regulate federal activities. This immunity applies to the United States government and federal employees acting in the course of their federal duties.
Dormant commerce clause
If Congress has not acted, a state or local government may regulate local aspects of interstate commerce, unless the state or local laws discriminate against out-of-staters or place an undue burden on interstate commerce.
This rule is inferred from the grant of power to Congress in the commerce clause to regulate interstate commerce.
A state or local law that discriminates against out-of-staters is protectionist and unconstitutional unless
- It is necessary to achieve an important, non-economic state interest. Necessary means there are no reasonable non-discriminatory means that would achieve the same objective.
- Congress may exercise its authority under the commerce clause to permit a state regulation that would otherwise violate the dormant commerce clause as long as the congressional legislation unmistakably grants such permission.
- A state or local government may prefer its own citizens when acting as a market participant
What is the test for whether a law places an undue burden on interstate commerce
It is a balancing test in which the undue burden on interstate commerce will be weighed against the benefits of the law to the state. If the burdens outweigh the benefits, the law will be struck down as unconstitutional.
