Constitutional Law Flashcards
What power derives from Article III?
Federal judicial power; including cases involving interpretation of the Constitution/statutes and disputes
Justiciability
Federal courts can hear a matter only if there is a “case or controversy”
- What the case is requesting (is it an advisory opinion?)
- When it is brough (is it ripe or moot?)
- Who is bringing it (does the plaintiff have standing?)
What is an advisory opinion? Can federal courts issue them?
Federal courts cannot issue advisory opinions, which are decisions that lack:
1. An actual dispute b/w adverse parties; or
2. Any legally binding effect on the parties
Ripeness
Courts cannot issue pre-enforcement reviews of laws or policies.
However, a plaintiff can establish ripeness before a law or policy is enforced by showing two things:
1. The issues are fit for a judicial decision; and
2. The plaintiff would suffer substantial hardship in the absence of review
Fitness = legal, not factual issues; not fit if unlikey to occur
Mootness
A plaintiff must suffer from an ongoing injury except:
- Controversies capable of repetition but that evade review because of their inherently short duration
- Cases where the defendant voluntarily stops the offending practice but is free to resume it
- Class actions in which the class representative’s controversy has become moot but the claim of at least other class member is still viable
Standing
- Injury in Fact
a. particularies injury; and
b. concrete injury - Causation
a. causal connection b/w the injury and the conduct complained of - Redressability
a. a decision in the litigant’s favor must be capable of eliminating their harm
Is there “citizenship” or “taxpayer” standing?
People have no standing merely as “citizens” or “taxpayers” to claim that government action violates federal law or the Constitution
Can a claimaint have standing on behalf of a 3rd party?
A claimaint with standing in their own right may assert the rights of a 3rd party if:
1. It is difficult for the 3rd party to assert their own rights; or
2. A close relationship exists between the claimant and the 3rd party
Can an organization have standing?
An organization has standing to sue on behalf of its members if:
1. There is an injury in fact to the members
2. The members’ injury is related to the organization’s purpose; and
3. Individual member participation in the lawsuit is not required
Can a claimaint have standing for free speach overbreadth?
A person ahs standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary, even if that person’s own speech would not be protected under the 1st Amendment.
However, this rule does not apply to restrictions on commercial speech.
May Congress confer standing?
No, Congress cannot eliminate the case or controversy requirement and, thus, cannot grant standing to someone who doesn’t have an injury.
Sovereign Immunity
Sovereign immunity bars claims against a state in federal and state courts.
Exceptions:
1. Express Waiver
2. Implicit Consent
a. A federal power is complete in itself; and
b. The state implicitly consented to the federal government exercising that power as part of the plan of the Constitution
3. Actions Against Local Governments
4. Suits by Other States or the Fed Gov’t
5. Bankruptcy
6. Certain Actions Against State Officers
a. Damages personally; or
b. Enjoin the official from future conduct that violates the Constitution or fed law
7. Congress Removes the Immunity
Politicial Questions
Political questions will not be decided. These are issues:
1. Constitutionally commited to another branch of gov’t; or
2. Inherently inacpable of judicial resolution
Necessary and Proper Clause (Article I, Section 8)
Congress can exercise the powers enumerated in the Constitution plus any necessary and proper to carry out its enumerated powers.
Does Congress have general police power?
No, Congress has no general police power (i.e., no general power to legislate for the health, safety, and welfare of the nation).
Taxing and Spending Power
Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution.
May Congress impose conditions on the grant of money?
Yes, Congress can impose conditions on the grant of money to state or local gov’ts. These conditions are valid if they:
1. Are clearly stated
2. Related to the purpose of the program
3. Are not unduly coercive; and
4. Do not otherwise violate the Const.
When are taxes imposed by Congress valid?
Most federal taxes will be upheld if they bear some reasonable relationship to revenue or to promoting the general welfare.
Commerce Power
Congress has the power to regulate all foreign and interstate commerce, as well as commerce with Indian tribes.
To be within Congress’s Commerce Clause power, a federal law regulating interstate commerce must either:
1. Regulate the channels of interstate commerce
2. Regulate the instrumentalities of interstate commerce; or
3. Regulate activities that have a substantial effect on interstate commerce
Can Congresss regulate intrastate commerce?
Congress may regulate intrastate commerce if there is a rational basis on which the activity in the aggregate substantially affects interstate commerce.
However, this rule DOES NOT apply when the regulated intrastate activity is **not commercial or economic. **
May Congress regulate commercial inactivity?
No, the Commerce Clause gives Congress power only to regulate existing commercial activity; it does not give Congress power to compel activity.
Bicameralism/Presentment
Passage of a bill by both houses followed by presentment to the President for signature or veto.
Are line item vetos valid?
No, Congress cannot give the President a line item veto power. The President can only approve or reject a bill as a whole.
Levels of Executive Implied Power
- Likely Valid - President acts with express or implied authority of Congress
- Uncertain - President acts where Congress is silent (unlikely to be upheld if it usurps the power of another gov’t branch or prevents another branch from carrying out its tasks)
- Likely Invalid - President acts against the express will of Congress
Executive War Powers
The president has no power to declare war but the President, as commander in chief, can act militarily in actual hostilities against the United States without a congressional declaration of war to protect American lives and property.
What happens if a state law conflicts with a treaty?
State laws that conflict with treaties are invalid.
What happens if a federal law conflicts with a treaty?
A conflict b/w a congressional act and a valid treaty is resolved by order of adoption: the last in time prevails.
What happens if a treaty conflicts with the Constitution?
Treaties are inferior to the Constitution and invalid if conflict.
What happens if an executive agreement conflicts with a state law?
The agreement prevails.
What happens if an executive agreement conflicts with a federal law?
The federal law prevails.
Supremecy Clause
A federal law may supersede or preempt state laws.
Two types of preemption:
1. Express Preemption
2. Implied Preemption
a. If a state law conflicts with federal law requirements, such that it would be impossible to follow both laws
b. If a state or local law prevents achievement of a federal objective
c. If a federal law impliedly “occupies” the entire field
Privileges and Immunities Clause
Prohibits discrimination by a state against nonresidents when the discrimination concers either their important commercial activities (pursuit of livelihood) or fundamental rights.
The clause ONLY applies if the discrimination is intentionally protectionist in nature.
Corporations and aliens are NOT protected by this clause.
Test for Privileges and Immunities Clause
If a state law burdens an important commercial activity or fundamental right, it will be invalid unless:
1. The law is necessary to achieve an important government purpose; and
2. **Least restrictive **means available
Privileges of National Citizenship
States may not deny their citizens the privileges or immunities of national citizenship.
Corporations are NOT protected by this clause.
Dormant Commerce Clause
If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce.
To do so, however, the state or local government must not discriminate against or unduly burden interstate commerce.
Dormant Commerce Clause Test
Discriminatory on it Face - State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid. However, a discriminatory state or local law may be invalid if it is necessary to acheive an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.
Non Discriminatory - If a nondiscriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of legitimate local interests.
Exceptions to Dormant Commerce Clause
- Congressional Approval
- State as Market Participant
- Favoring Government Perfoming Traditional Government Functions
State Action Requirement
To show a constitutional violation “state action” must be involved. However, state action can be found in actions of seemingly private individuals who:
1. Perform exclusive public functions
2. Have significant state involvement; or
3. Activities that are traditionally the exclusive prerogative of the state
