Constitutional Law

Question 1

Article 3 - Case or Controversy

Answer 1

A case or controversy must be justiciable – the court’s ruling must bring about some change or effect. Justiciability considers advisory opinions, timeliness, standing, and political/legal questions.

Question 2

Article 3 - Case or Controversy - Advisory Opinions

Answer 2

Advisory opinions are when a party is seeking the court’s advice on a particular issue in the absence of an Article 3 case or controversy because an advisory opinion would allow the branches to quickly resolve things and prevent future litigation or conflict over legislation. These are not allowed because there must be an adversarial relationship between the parties and non-adversarial suits should generally be dismissed.

If one party believes the law is unconstitutional, refuses to defend it, but continues to enforce it, then it still counts as adversarial.

If there is no disagreement, then the parties could just be colluding to bring a lawsuit.

If a party seeks declaratory relief, then there must be a case or controversy, the court needs to be willing to do a pre-enforcement review, and it must analyze the potential hardships of the P. Otherwise, there will be prudential concerns regarding advisory opinions and ripeness.

Question 3

Article 3 - Case or Controversy - Moot

Answer 3

Mootness is when litigants who clearly had standing to sue at the outset of the litigation are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after the lawsuit has gotten underway. A case is moot when the factor that made the case justiciable is no longer in play (ex. the law being challenged is repealed or expired, or the D dies).

However, a claim is not considered moot if (1) the controversy is short and evades review, but it is repetitive; (2) the D voluntarily stops but can resume; and (3) class actions in which the representative’s controversy is moot, but at least one other member’s claim is viable.

Question 4

Article 3 - Case or Controversy - Ripe

Answer 4

Ripeness seeks to prevent premature adjudication and involves situations where the dispute is insufficiently developed and is instead too remote or speculative to warrant judicial action. A case is not ripe when it seeks to prevent anticipatory or pre-enforcement review.

However, the dispute can be ripe if the P can demonstrate substantial hardship or a pure legal question. Substantial hardship can be shown when the P is (1) facing a violation of a statute in order to challenge its unconstitutionality; (2) where enforcement is certain; and (3) because of collateral injuries

Question 5

Article 3 - Case or Controversy - Standing

Answer 5

Standing is the determination of whether a specific party is the proper party to bring a matter to the federal courts for review. Standing requires (1) injury in fact, (2) causation, and (3) redressability.

Question 6

Article 3 - Case or Controversy - Standing - Injury in Fact

Answer 6

Injury in fact requires the P to allege that (1) they have suffered or will imminently suffer injury; and (2) the injury is concrete and particularized to them. Injury cannot be hypothetical. Failure to show these factors means there is no injury and the P is merely seek pre-enforcement review which is not allowed.

Question 7

Article 3 - Case or Controversy - Standing - Causation

Answer 7

Causation requires the P to allege that the injury is fairly traceable to the D’s conduct. If the relationship is too attenuated, based on hypotheticals, or there are intervening third parties, then there is a lack of causation.

Question 8

Article 3 - Case or Controversy - Standing - Redressability

Answer 8

Redressability requires the P to show the remed(ies) sought will redress their injury and that the court can grant these remed(ies). Partial redress is still sufficient.

Question 9

Article 3 - Case or Controversy - Standing - Redressability - Declaratory Relief

Answer 9

Declaratory relief is when the court makes a statement that outlines the rights and obligations of the parties.

If the P asks for declaratory relief, then it is important to note whether the declaratory relief sought will be enough to redress the issue and that some other party might not come along and cause the injury anyways.

When an injury is concrete and particularized, then a declaratory judgment is sufficient to redress an injury, even if it is aesthetic or informational, because the P will know their rights going forward and whether or not they should fear prosecution.

Also, even if there is standing for declaratory relief, the court needs to be willing to do a pre-enforcement review, otherwise prudential concerns regarding advisory opinions and ripeness will affect standing.

Question 10

Article 3 - Case or Controversy - Standing - Redressability - Injunction

Answer 10

If the P asks for an injunction, then it is important to note whether the injunction is enough to redress the issue. Injunction is when the P asks the court to restrain or enforce another party to do something in the future. These create issues because restraining or enforcing something in the future implies the injury is not real and imminent.

Question 11

Article 3 - Case or Controversy - Standing - Redressability - Civil Claim against President

Answer 11

If this is a civil claim against the President, then note that it is not possible to sue the president for civil monetary damages in connection to an official act. This is because the president must be protected from diversion and distortion that stems from fear of civil monetary lawsuits for his official actions.

Question 12

Article 3 - Case or Controversy - Standing - Exceptions

Answer 12

There are certain standing exceptions to the general rule that citizens and taxpayers have no standing: (1) a tax payer can challenge their tax bill; (2) a person may have standing to allege the federal action violates the 10A by interfering with powers reserved to the states; and (3) a person may have standing to challenge congressional spending measures on the 1A’s Establishment Clause.

Question 13

Article 3 - Case or Controversy - Prudential Policies

Answer 13

Prudential policy considerations may allow a court to waive a case or controversy requirement, include (1) third-party standing; (2) generalized grievances; and (3) zone of interests.

Question 14

Article 3 - Case or Controversy - Prudential Policies - Third-Party Standing and Exceptions

Answer 14

Third-party standing is generally not allowed because courts do not like facial challenges (“this statute is unconstitutional in all applications”) and they prefer “as applied” challenges (“in this application, this statute is constitutional”).

However, there are four exceptions where courts may allow third-party standing: (1) the third party is unlikely to sue and the challenging party is in the best position to protect the rights of the absent third-party; (2) there is a close relationship between the P and the third-party; (3) the statute is broad and permits a person to challenge the statute on the ground that it violates the 1A rights of third-parties not before the court; and (4) associations or organizations that sue on behalf of members (requires injury to members that is related to organization’s purpose, and individual member participation not required).

Question 15

Article 3 - Case or Controversy - Prudential Policies - Generalized Grievances

Answer 15

Generalized grievances are issues that are widely shared among many – these are generally insufficient for standing and should be addressed in the political process. However, a citizen suit provision can waive this

Question 16

Article 3 - Case or Controversy - Prudential Policies - Zone of Interests

Answer 16

Zone of interests requires a P’s claims to fall within the zone of interest to be protected and regulated by the statute or constitutional guarantee in question. This element is not especially demanding and considers whether, even if standing is met, this the party intended to benefit from the Act or constitutional guarantee.

Question 17

Article 3 - Sovereign Immunity

Answer 17

The 11A provides the doctrine of sovereign immunity which bars a private party’s suit against a state in federal and state courts, as well as claims against a state in federal and state agencies. However, there are several exceptions that allow governments to be sued in court: (1) express waivers by states; (2) implicit consent or structural waivers by states; (3) no immunity for local governments and entities; (4) states sued by other states or federal government; (5) no immunity for bankrupcty proceedings; (6) certain actions by state officials (for damages personally, or to enjoin the official from future conduct that violates the Constitution or federal law with a bar on retroactive damages); and (7) removal of immunity by Congress pursuant to 14A in order to prevent discrimination.

Question 18

Article 3 - Abstention

Answer 18

A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law. Federal courts will not enjoin pending state criminal proceedings, except in cases of proven harassment or prosecutions taken in bad faith.

Question 19

Article 3 - Political Questions

Answer 19

Political questions are either constitutionally committed to another branch of government or inherently incapable of judicial resolution. These are dismissed because the court believes it is better answered by another political branch. Political questions can be determined by considering whether (1) the Constitution clearly notes it belongs to another branch or (2) there are policy reasons the court should stay away from the issue.

There are areas previously determined as nonjusticiable questions, such as foreign relations, validity of enactments, issues invoking the Guaranty Clause (but remember not every Guaranty Clause claim is nonjusticiable), congressional qualifications, treaty abrogation, impeachment and removal from office, and recognition of foreign sovereigns.

It is error to suppose that every issue invoking the guaranty clause is a non-justiciable political question – alleged violations of the republican form of government (guaranty clause) pose non-justiciable political questions, but claims that districting (apportioning/malapportioning) violates the equal protection clause are justiciable.

It is error to suppose that every issue touching foreign relations is a non-justiciable political question – even if a matter involves foreign policy, it can be justiciable if it requires examination of the nature of the statute and whether it is constitutional.

It is error to suppose that every issue pertaining to Congress’ internal governance are non-justiciable political questions – when an issue is “at most a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in the Constitution” then the case can be justiciable.

Question 20

Article 1 - Legislative Power

Answer 20

Article 1 grants the legislative branch enumerated powers under Section 8. Congress has power to make all laws necessary and proper to reasonably carry out its enumerated powers – if the courts can reasonably find that the law relates to Congress’ federal power, then the Courts will defer decision to Congress (i.e., rational basis). Congress has the power to pass legislation that facilitates a legitimate end of government, so it can use any means not prohibited by the Constitution. Congress also does not have general police power, except for federal-ish lands (like District of Columbia, federal lands, military bases, and Indian reservations), as all powers not granted to the government are reserved to the states under 10A.

Question 21

Article 1 - Legislative Powers - Straightforward Powers

Answer 21

Congress has power to declare war, power to investigate, power to dispose of and make rules for territories, power over post/mail, power to establish uniform rules of naturalization, power over admiralty, power to coin money, and power to control patents and copyrights.

Question 22

Article 1 - Legislative Powers - Power to Spend

Answer 22

Congress has the power to spend for the general welfare of its citizens. This power is very broad and can be used for any public purpose not prohibited by the Constitution. Congress can encourage and induce states to comply with regulatory outcomes – like placing conditions on federal grants – provided the conditions are not commandeering.

Question 23

Article 1 - Legislative Powers - Power to Spend - Valid Act

Answer 23

To determine whether an act is appropriate under the spending power, consider if the conditions are (1) clearly stated; (2) relate to the purpose of the program; (3) not unduly coercive; and (4) do not otherwise violate the Constitution. The standard of review is deferential to Congress and only considers whether Congress rationally and reasonably believes it is related. A coercive provision in an otherwise okay statute can be severed.

Conditional funding programs are presumptively constitutional, but they must provide meaningful choice to the states. The states must have a choice between accepting and rejecting the grant. Generally, small withholdings of funds are okay, large withholdings of funds are not okay, and medium withholding of funds depends on the totality of the circumstances.

Question 24

Article 1 - Legislative Powers - Power to Tax

Answer 24

Congress has the power to tax for the general welfare of its citizens. This power is very broad and can be used for any public purpose not prohibited by the Constitution. If Congress wants to impose mandates on people not engaged in an activity, it can use the Tax Power if the people are given a choice in whether to pay the tax. Meaningful choice is important, and the individual must have a choice between paying the tax or paying for the regulated object/activity.

Question 25

Article 1 - Legislative Powers - Power to Tax - Valid Tax v. Invalid Penalty

Answer 25

Taxes are generally valid and will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare. Penalties are generally invalid because they are not a legitimate means of regulation. Some “penalties” are actually permissible taxes if it functions as a tax in raising revenue or influencing (not compelling) behavior.

A tax is valid under the Commerce Clause if (1) the tax does not discriminate against interstate commerce, (2) there is a substantial nexus between the activity taxed and the taxing state, (3) the tax is fairly apportioned, and (4) the tax fairly relates to services or benefits provided by the state.

To determine whether a tax is a tax and not a penalty, consider (1) the tax amount; (2) a scienter or knowledge of wrongdoing requirement; and (3) the department collecting the tax. An exceedingly heavy tax amount is a penalty because there is no real choice. A scienter requirement is a penalty because it punishes knowing behavior. A collection by a non-IRS related department is a penalty.