Constitutional Law Flashcards
Power of Judicial Review
- SCOTUS has the power to review the acts of the other branches.
Supreme Court Jurisdiction
Original Jurisdiction
- Cases where state is a party
- Congress cannot restrict or enlarge but can give concurrent jurisdiction to lower federal courts (with exception of cases between states where SCOTUS has exclusive original jurisdiction)
Supreme Court Jurisdiction
Appellate Jurisdiction
Cases can be heard by SCOTUS in two ways:
- On writ of certiorari - discretion to hear case
- Mandatory appeal
- District court
Justiciability - Can the federal court hear the case?
- Standing
- Claim cannot be ripe
- Claim cannot be move
- Claim cannot involve a political question
- Cannot violate the 11th Amendment - state sovereignty
- Cannot render advisory opinions
Justiciability
Standing
- Injury-in-fact - particularized to P and concrete (not hypothetical)
- Causation - Traceable to D
- Redressability - Remedy must be available, eliminate harm to P
* Ideological objections or generalized grievances as a citizen or taxpayer, no particularized injury to P
Justiciability
No 3P Standing
P cannot assert the claims of 3Ps unless she has also suffered an injury and either:
- 3P unable to assert his/her own rights; or
- There is a close relationship between P and 3P (e.g., doctor-patient relationship, physician challenges abortion restriction)
Justiciability
No Taxpayer Standing
Generally, don’t have standing to challenge the way tax dollars are spent.
Exception -
- Measure was enacted under Congress’ spending/ tax power; AND
- Measure violated some other Constitutional provision (Establishment Clause)
Justiciability
Organizational Standing
Organization/ association can sue on its own claims or those of its members if:
- Its members would have standing to sue (have an injury-in-fact);
- Their interests are related to the organization’s purpose; and
- Neither the claim or relief requires participation of its individual members
Justiciability
Claim Cannot be Ripe
Bars consideration of claims before they have developed (before they have been enforced)
Exception - Pre-enforcement reviews of laws will be heard where:
- Fit for judicial decision; and
- P would suffer substantial hardship in the absence of review
Justiciability
Claim Cannot be Moot
P must be suffering an ongoing injury. Bars consideration of claims after they have been resolved. Cannot review claim after P’s injury is gone.
Exceptions:
- Wrong capable of repetition but evading review
- D voluntarily stopped offending practice but is free to resume it
- Involves a class action - If representative P’s claim becomes moot, class action will not be dismissed so long as one member of claim has ongoing injury
Justiciability
Claim cannot involve a political question
Federal courts will not decide political questions or those issues:
- Committed to another branch of government (e.g., challenges to President’s foreign policy, impeachment and removal process, partisan gerrymandering);
- Are inherently incapable of being resolved and enforced by judicial process
Justiciability
Cannot violate 11th Amendment - State Sovereignty
Generally, private parties cannot sue states.
Exceptions:
- State waived sovereign immunity (e.g., Tort Claims Act)
- Can sue local governments (e.g., city, country, department)
- Can sue other states
- Can sue state officials but only for violating federal law/ Constitution
- Congress has removed state’s immunity as to actions created under 14th A power to prevent discrimination
Justiciability
No advisory opinions
Cannot render advisory opinions. A decision is an advisory opinion if:
- There is no dispute between 2 adverse parties; or
- Decision is not binding on the parties
Supreme Court Jurisdiction
Adequate and Independent State Grounds
SCOTUS will not review a state court judgment if the judgment is based on an adequate and independent state law ground, even if federal issues are involved.
If you’re seeking review of a federal question but there is a state law ground that is independent and also adequate/ sufficient to decide case, SCOTUS will deny review of the federal question.
Legislative Power
Congress can only pass laws under its enumerated powers
Legislative Power
No Police Power
Congress does not have police power (i.e., power to legislate for health, welfare, morals)
Exceptions:
- District of Columbia
- Military bases
- Federal lands
- Reservations
Legislative Power
Taxing Power
Congress can tax for the general welfare. If revenue raising, generally valid.
Congress cannot pass law requiring individuals to purchase something (e.g., health insurance) but can impose tax on failure to purchase health insurance as a way to encourage individuals to purchase it.
Legislative Power
Spending Power
Can spend for the “general welfare.” Congress has broad power to spend - not limited to areas where it has enumerated powers.
Through spending power, can regulate areas it would otherwise not be able to regulate by attaching strings to federal grants. Conditions must:
- Be clearly stated;
- Relate to purpose of grant;
- Not be unduly coercive (e.g., ACA Medicaid expansion); and
- Not violate the Constitution
Legislative Power
Commerce Power
Congress can regulate interstate commerce. This includes:
- Channels of ISC - roads, rails, waterways, phones
- Instrumentalities of ISC - trucks, planes, trains, cars, people
- Activities that have a substantial effect on ISC
Congress can regulate even purely local/ intrastate activity if in the aggregate, the class of activity substantially affects ISC. . e.g., Wickard v. Filburn - cap on wheat, would have depressing effect on wheat in interstate market
Commercial Local Activity → Regulation will be upheld if RB
Non-Commercial Activity →
Legislative Power
War Power
Congress has power to declare war and raise and support armies.
Cannot deny habeas corpus review to enemy combatants unless they are given a meaningful substitute.
Legislative Power
Power Over Citizenship
Aliens = persons born in another country and are citizens of that country and who are not US citizens
- Nonresident aliens - Can be denied entry into US b/c of political beliefs
- Resident aliens - Cannot be deported without notice and hearing
Legislative Power
Necessary and Proper Clause
By itself, it not a basis for Congress to legislate. Must be coupled with some other enumerated power.
Congress can adopt all laws necessary and proper to carry out any of its enumerated powers.
Legislative Power
Congressional Delegation of Powers
Congress can delegate its powers to executive officers or administrative agencies so long as:
- Power is not confined to Congress (e.g., powers to declare war, impeach); and
- Congress has set intelligible standards for delegate to follow
Legislative Powers
Congressional Act
For Congress to act, there must be:
- Bicameralism (passage by House and Senate); and
- Presentment (giving bill to President to sign or veto)
President must sign or veto bill in its entirety - line item veto is unconstitutional. If President vetoes, act may still become law if veto is overridden by ⅔ vote of each house.
No legislative vetoes - Congress cannot appeal or amend existing law without undergoing bicameralism and presentment
Executive Power
Take Care Clause
One of President’s express domestic powers is to faithfully execute the laws.
Executive Power
Implied Powers
- When authorized by congress, actions likely valid.
- If Congress silent (did not authorize or prohibit) may be upheld if:
- Supported by history or necessity
- Does not usurp power of other branch
- If acts counter to Congress’ express will, President’s actions likely invalid
Executive Power
No Power to Impound
President cannot refuse to spend appropriated funds when Congress
Executive Power
Domestic Powers
- Appointment
- Removal
- Pardons
- Veto Power
Executive Power
Pardon Power
May only pardon:
- Those accused or convicted;
- Of federal crimes; and
- Have not been impeached.
Executive Power
Appointment Power
President alone appoints ambassadors, federal judges, and officers
- But subject to “advice and consent” of Senate
Executive Power
Veto Power
After Congress has presented bill to President, President may veto entire bill. Has 10 days to veto. If fails to do so:
- If Congress is in session → bill becomes law.
- If Congress is not in session → bill is automatically vetoed
Executive Power
Foreign Powers
- War
- Treaties
- Executive Agreements
Executive Power
War Power
Cannot declare war (this is within Congress’ power)
However, may act militarily under power as commander-in-chief if there are actual hostilities against US. Use commander-in-chief powers to engage in undeclared wars.
Note, challenges to President’s use of commander-in-chief powers are likely non-justiciable, non-reviewable by federal courts as political questions.
Executive Power
Treaty Power
Agreements between US and foreign country. Negotiated by President. Approved by ⅔ Senate.
If treaty is self-executing (does not require implementing legislation by Congress) is treated as law.
If treaty is not self-executing, President cannot issue memorandum ordering compliance with treaty.
Executive Power
Executive Agreements
Agreements between President and other head of state. Senate approval not required.
Executive Power
Treaties and Executive Orders - Hierarchy of Laws
1) Constitution
⇣ prevails over
2) Treaties + Federal Statutes (in a conflict between two, last in time prevails)
⇣ prevails over
3) Executive Agreements
⇣ prevails over
4) State Law
Executive Power
Executive Privilege
Holds executive privilege for presidential communications. But not absolute. Will yield to other important government interests.
Exception - President is subject to state criminal subpoenas of personal records
Executive Power
Executive Immunity
Immunity from civil suit for any actions while carrying out presidency.
No immunity for actions that occurred prior to taking office.
Executive Power
Impeachment
Can be impeached and removed from office for treason, bribery, high crimes, or misdemeanors
Will be impeached (charged) by majority vote of house
Convicted by ⅔ vote of Senate
