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Constitutional Law Flashcards

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1
Q

Power of Judicial Review

A
  • SCOTUS has the power to review the acts of the other branches.
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2
Q

Supreme Court Jurisdiction

Original Jurisdiction

A
  • 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)
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3
Q

Supreme Court Jurisdiction

Appellate Jurisdiction

A

Cases can be heard by SCOTUS in two ways:

  1. On writ of certiorari - discretion to hear case
  2. Mandatory appeal
    1. District court
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4
Q

Justiciability - Can the federal court hear the case?

A
  1. Standing
  2. Claim cannot be ripe
  3. Claim cannot be move
  4. Claim cannot involve a political question
  5. Cannot violate the 11th Amendment - state sovereignty
  6. Cannot render advisory opinions
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5
Q

Justiciability

Standing

A
  1. Injury-in-fact - particularized to P and concrete (not hypothetical)
  2. Causation - Traceable to D
  3. Redressability - Remedy must be available, eliminate harm to P

* Ideological objections or generalized grievances as a citizen or taxpayer, no particularized injury to P

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6
Q

Justiciability

No 3P Standing

A

P cannot assert the claims of 3Ps unless she has also suffered an injury and either:

  1. 3P unable to assert his/her own rights; or
  2. There is a close relationship between P and 3P (e.g., doctor-patient relationship, physician challenges abortion restriction)
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7
Q

Justiciability

No Taxpayer Standing

A

Generally, don’t have standing to challenge the way tax dollars are spent.

Exception -

  1. Measure was enacted under Congress’ spending/ tax power; AND
  2. Measure violated some other Constitutional provision (Establishment Clause)
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8
Q

Justiciability

Organizational Standing

A

Organization/ association can sue on its own claims or those of its members if:

  1. Its members would have standing to sue (have an injury-in-fact);
  2. Their interests are related to the organization’s purpose; and
  3. Neither the claim or relief requires participation of its individual members
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9
Q

Justiciability

Claim Cannot be Ripe

A

Bars consideration of claims before they have developed (before they have been enforced)

Exception - Pre-enforcement reviews of laws will be heard where:

  1. Fit for judicial decision; and
  2. P would suffer substantial hardship in the absence of review
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10
Q

Justiciability

Claim Cannot be Moot

A

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:

  1. Wrong capable of repetition but evading review
  2. D voluntarily stopped offending practice but is free to resume it
  3. 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
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11
Q

Justiciability

Claim cannot involve a political question

A

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
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12
Q

Justiciability

Cannot violate 11th Amendment - State Sovereignty

A

Generally, private parties cannot sue states.

Exceptions:

  1. State waived sovereign immunity (e.g., Tort Claims Act)
  2. Can sue local governments (e.g., city, country, department)
  3. Can sue other states
  4. Can sue state officials but only for violating federal law/ Constitution
  5. Congress has removed state’s immunity as to actions created under 14th A power to prevent discrimination
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13
Q

Justiciability

No advisory opinions

A

Cannot render advisory opinions. A decision is an advisory opinion if:

  1. There is no dispute between 2 adverse parties; or
  2. Decision is not binding on the parties
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14
Q

Supreme Court Jurisdiction

Adequate and Independent State Grounds

A

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.

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15
Q

Legislative Power

A

Congress can only pass laws under its enumerated powers

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16
Q

Legislative Power

No Police Power

A

Congress does not have police power (i.e., power to legislate for health, welfare, morals)

Exceptions:

  1. District of Columbia
  2. Military bases
  3. Federal lands
  4. Reservations
17
Q

Legislative Power

Taxing Power

A

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.

18
Q

Legislative Power

Spending Power

A

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:

  1. Be clearly stated;
  2. Relate to purpose of grant;
  3. Not be unduly coercive (e.g., ACA Medicaid expansion); and
  4. Not violate the Constitution
19
Q

Legislative Power

Commerce Power

A

Congress can regulate interstate commerce. This includes:

  1. Channels of ISC - roads, rails, waterways, phones
  2. Instrumentalities of ISC - trucks, planes, trains, cars, people
  3. 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 →

20
Q

Legislative Power

War Power

A

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.

21
Q

Legislative Power

Power Over Citizenship

A

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
22
Q

Legislative Power

Necessary and Proper Clause

A

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.

23
Q

Legislative Power

Congressional Delegation of Powers

A

Congress can delegate its powers to executive officers or administrative agencies so long as:

  1. Power is not confined to Congress (e.g., powers to declare war, impeach); and
  2. Congress has set intelligible standards for delegate to follow
24
Q

Legislative Powers

Congressional Act

A

For Congress to act, there must be:

  1. Bicameralism (passage by House and Senate); and
  2. 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

25
Q

Executive Power

Take Care Clause

A

One of President’s express domestic powers is to faithfully execute the laws.

26
Q

Executive Power

Implied Powers

A
  • 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
27
Q

Executive Power

No Power to Impound

A

President cannot refuse to spend appropriated funds when Congress

28
Q

Executive Power

Domestic Powers

A
  1. Appointment
  2. Removal
  3. Pardons
  4. Veto Power
29
Q

Executive Power

Pardon Power

A

May only pardon:

  • Those accused or convicted;
  • Of federal crimes; and
  • Have not been impeached.
30
Q

Executive Power

Appointment Power

A

President alone appoints ambassadors, federal judges, and officers

  • But subject to “advice and consent” of Senate
31
Q

Executive Power

Veto Power

A

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
32
Q

Executive Power

Foreign Powers

A
  1. War
  2. Treaties
  3. Executive Agreements
33
Q

Executive Power

War Power

A

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.

34
Q

Executive Power

Treaty Power

A

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.

35
Q

Executive Power

Executive Agreements

A

Agreements between President and other head of state. Senate approval not required.

36
Q

Executive Power

Treaties and Executive Orders - Hierarchy of Laws

A

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

37
Q

Executive Power

Executive Privilege

A

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

38
Q

Executive Power

Executive Immunity

A

Immunity from civil suit for any actions while carrying out presidency.

No immunity for actions that occurred prior to taking office.

39
Q

Executive Power

Impeachment

A

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

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