constitutional law Flashcards
There is no taxpayer standing to challenge how tax dollars are
spent by the federal or state government because the interest is too remote
**(Note: a person may always challenge their personal tax bill.) **
Exception: The only exception is if the taxpayer challenges:
1. a law enacted under Congress’s taxing and spending powers, and
2. the plaintiff alleges that Congress exceeded a specific constitutional
limit on the power.
**Bar Exam Tip: what this almost always means is that the plaintiff alleges an Establishment Clause challenge to a taxing and spending
law. **
: If plaintiff alleges that Congress wrongfully used government funds to restore a historic church in violation of the Establishment Clause, is taxpayer standing appropriate?
Yes, because the law was enacted under Congress’s taxing and spending powers and the plaintiff is alleging that Congress exceeded a specific limit (by violating the Establishment Clause).
If plaintiff alleges that Congress wrongfully gave land to a new church in
violation of the Establishment Clause, is taxpayer standing appropriate?
No, because Congress’s action was not enacted under its taxing and spending powers. It was enacted under its property powers.
Note: generally, there is no taxpayer standing,
unless P alleges an Establishment Clause challenge to a taxing and spending law.)
3 test to determine whether a law voilates the establishment clause
(1) the state must have a secular legislative purpose,
(2) the primary effect must** not be to advance nor inhibit religion**, and
(3) it must not foster excessive governmental entanglement with religion.
**Excessive entanglement occurs when the government would have to keep close surveillance on its funds (for example, grants for salaries of teachers that only teach secular subjects). **
action will only be upheld if it meets all 3 elements of the lemon test and only regulates practice of religion not beliefs. gov can never regulate beliefs
Placing the Ten Commandments in a public school voilates the establishment clause
However, placing it as a monument with many other monuments in the state capitol is permitted.
Government aid to religious schools
(1) Providing bus fare, money for textbooks, standardized tests, lunch, library materials, and interpreters for the deaf is constitutional. The goal is to help the children rather than the school.
(a) However, the state cannot give money for actual religious indoctrination (this is excessive entanglement), including paying a portion of private school teachers’ salaries.
(2) If the government gives a deduction for taxes to all parents based on actual expenditures for children who attend a public, private, or religious school, it will be upheld.
The government is also constitutionally permitted to give vouchers to parents which allow them to send their children to religious schools instead of public schools because aid is neutral and parents are themselves choosing to send their children to religious schools.
establishment clause issue
what type of law is at issue?
content nuetral or one that fovors one religion over the other ?
content nuetral - apply lemon test
favors one religion over the next - apply strict scrutiny -If the government can meet its burden, the law is constitutional and will be upheld.
the establishment clause on its face prevents congress from establishing a religion. the establishment clause applies to the local government via the fourteenth amendment through the due process clause
for contract clasie to apply the legislation must substantially impairs preexisting obligations
Individuals may be constitutionally required to register and submit to examinations reasonably required by the selective service system to facilitate the conscription of manpower for military service
war power
congress has wide war powers authority. the draft and selective service systems as been uphels as a proper exercise of congress war power
free exercise clause
Beliefs themselves are absolutely protected. A government may not punish or burden an individual based on their genuinely-held religious beliefs.
The government looks at the person’s sincerity, not whether the beliefs are true or false
Unlike beliefs, freedom to act in a certain way is not absolutely protected.
When the individual engages in conduct that is motivated by his religious beliefs, the state may regulate or prohibit the activity so long as the regulation is neutral and of general applicability
However, the regulation cannot be motivated to prevent, burden, or** interfere** with religion/practice of a religion.
if there is a federally-owned enclave located within a state (e.g., a national park or military base), Congress’s civil and criminal regulations are enforceable as to that enclave, and take precedence over any inconsistent state regulation
So whenever you see Congress reserving to itself (or to a panel appointed by it) the power to either appoint or remove a Cabinet-level officer, a member of a federal commission with executive-type powers, or an ambassador, you will know that this is a separation-of-powers violation.
the hardest part would be recognizing that members of the
commission in question hold powers that are** primarily executive,** triggering the rule that only the President, not Congress, may appoint the members.
: Congress establishes the Federal Election Commission, which enforces federal campaign laws. The Commission has power to bring civil actions against violators. The statute establishing the Commission allows Congress to appoint a majority of the Commission’s members. Held, the tasks performed by the Commission are primarily executive, and its members are “officers of the United States.” Therefore, the members must be appointed by the President, not Congress. [Buckley v. Valeo]
presidents power
President’s power to remove with or without cause:
The President may as a general matter remove any executive appointee without cause.
The only exceptions are that Congress may require the President to have cause in order to remove (1) an officer who is appointed pursuant to a statute specifying the length of the term of office; and (2) an officer who performs a judicial or quasi-judicial function, such as an administrative judge (putting aside the requirement of impeachment as the sole means
of removing federal judges appointed for life under Article I)
congress has no power to remove
Congress may not even indirectly keep the power to remove an executive officer, by entrusting to a congressionally-appointed panel or commission the right to remove that officer.
The facts tell you that the Director holds a “Cabinet-level”
post, so that automatically makes him a principal federal officer. Only the President may remove such an officer. Since a majority of the Commission’s members are picked by Congress, the Commission’s action removal action is deemed to be by Congress rather than by the President (even though the President appointed a minority of the members).
The fact that the removal is for cause does not make any difference.
