Constitutional Law Flashcards
Justiciability - Cases & Controversies
(1) Standing;
(2) Ripeness;
(3) Mootness
Standing
Standing is the issue of whether the Plaintiff is the proper party to bring a matter to the court of adjudication.
(1) Injury
(2) Causation & Redressability
(3) No Third Party standing
(4) No generalized grievances
Standing
Injury
Plaintiff must allege and prove that he or she has been injured or imminently will be injured.
Standing
Causation & Redressability
Plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury.
Standing
No Third Party standing
Plaintiff cannot assert claims of others, of third parties, who are not before the court. HOWEVER, there are (3) Exceptions:
(1) A close relationship between the plaintiff and the injured 3d party;
(2) Injured 3d party is unlikely to be able to assert his or her own rights;
(3) Organization may sue for its members, if the members would have:
(a) Standing to sue;
(b) Interests are germane to the organization’s purpose;
(c) Neither the claim nor relief requires participation of individual members
Standing
No generalized grievances
Plaintiff must NOT be suing solely as a citizen or as a taxpayer interested in having the government follow the law.
Exception: Taxpayers have standing to challenge gov’t expenditures pursuant to federal (or state and local) statutes as violating the Establishment Clause
Fact pattern will say Plaintiff is suing as “taxpayer” or “citizen”
No standing generalized grievance!!!
The ONLY exception where taxpayer has standing is gov’t expenditure of revenue pursuant to a statute, Federal state or local, as violating the establishment clause under the First Amendment.
(1) Taxpayer has standing to challenge federal law providing monetary aid to religious (parochial) schools;
(2) Taxpayers DO NOT have standing to challenge federal government grants of property to religious institutions;
(3) Taxpayers DO NOT have standing to challenge federal government expenditures from general executive revenues;
(4) Taxpayers DO NOT have standing to challenge state tax credits that benefit religious institutions.
Which of the following Plaintiff has best standing if more than (1) Plaintiff suffered personal injury:
Choose the answer where the Plaintiff suffered a MONETARY harm.
Ripeness
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
Courts will look at:
(1) The hardship that will be suffered without pre-enforcement review; and
(2) The fitness of the issues and the record for judicial review.
Plaintiff is requesting a Declaratory Judgment?
Then always apply whether there is a ripeness issue!
Mootness
If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot.
Exceptions to the Mootness Doctrine
(1) Wrongs capable of repetition but evading review;
(2) Voluntary cessation If the defendant voluntarily halts the offending conduct, but is free to resume it at anytime, the case will not be dismissed as moot;
(3) Class action suits A class action will not be dismissed if the named plaintiff’s claim becomes moot so long as one member of the class has an ongoing injury.
Political Questions Doctrine
The political question doctrine refers to constitutional violations that the federal courts will not adjudicate. Courts leave political questions to political branches to resolve!
(1) The “republican form of government clause” -
The U.S. should guarantee a Republican form of gov’t;
(2) Challenges to the President’s conduct of foreign policy;
(3) Challenges to the impeachment and removal process;
(4) Challenges to partisan gerrymandering.
Political Question Doctrine
State or local law violated the republican form of gov’t clause
Always a wrong answer!
Political Question Doctrine
Claim alleging that a state or local gov’t practice violates republic form of gov’t clause
The answer: It’s a non-justiciable political question. Dismissed.
Supreme Court Review
Virtually all cases come to the Supreme Court by Writ of Certiorari
All cases from State Courts and Court of Appeals come to the Supreme Court by:
Writ of Certiorari
When there is a three-judge Federal District Court:
The Supreme Court reviews on appeal and not by Write of Certiorari.
- Skips Federal Court of Appeals and goes straight to SCOTUS.
- Look for THREE-JUDGE panel.
The Supreme Court has original and exclusive jurisdiction:
For suits between state governments.
Final Judgment Rule
SCOTUS can hear a case only AFTER a final judgment.
Generally, the Supreme Court may hear cases only after there has been a final judgment of the highest state court, of a United States Court of Appeals, or of a 3 judge federal district court.
For the Supreme Court to review a state court decision, there must NOT be an independent and adequate state law ground of decision
If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it.
An ordinance of a city prohibits leafleting on the grounds of any hospital or on the sidewalks within five feet of the hospital entrances during visiting hours. A member of a religious group advocating prayer to restore the sick to good health is arrested for violating the ordinance, is fined $100, and is convicted. She appeals her conviction, claiming that her constitutional rights were violated.
The case was heard by the state supreme court, which ruled that while the ordinance was permissible under the United States Constitution, it was unconstitutional under the state constitution because the fine money was designated to go to the city’s only hospital, which was privately owned, rather than to the city. The city seeks to bring the case before the United States Supreme Court.
Should the United States Supreme Court grant certiorari?
A) No, because the case was decided on independent state grounds.
B) No, because the case is moot.
C) No, because this is a political question.
D) Yes, the Supreme Court should hear the case on its merits, because it involves an important federal question.
A) No, because the case was decided on independent state grounds.
Lower Federal Court Review
Federal courts (and state courts) may not hear suits against state governments.
Principle of Sovereign Immunity
State government CANNOT be sued as an entity in state courts or federal agencies.
11th Amendment
State government CANNOT be sued as entity in federal court under the 11th Amendment.
State government CAN be sued as entity
EXCEPTIONS: States may be sued under the following circumstances:
(1) Waiver is permitted;
(2) States may be sued pursuant to federal laws adopted under section 5 of the 14A. Congress cannot authorize suits against states under other constitutional provisions;
(3) The federal gov’t may sue state gov’t.
(4) Bankruptcy proceedings and suits pursuant to statutes adopted by Congress under its power to raise an army and a navy.
Suits against state officers are allowed
(1) State officers may be sued for injunctive relief;
(2) State officers may be sued for money damages to be paid out of their own pockets;
(3) State officers may NOT be sued if it is the state treasury that will be paying retroactive damages.
* Unless the only basis for liability is indemnification.
- State officers include: Governors; Attorney Generals
Abstention
Federal court has jurisdiction but declines.
Federal courts CANNOT enjoin pending state court proceedings. (Just know this for the exam)
Abstention rarely is tested.
Example of Abstention
CA passed a law prohibiting ownership of Barbri books on the grounds that they’re boring. Law student prosecuted in CA state court for owning Barbri books. Student immediately goes to court for an injunction and a declaratory judgment and argues CA should be enjoined for violating his first amendment rights.
Federal court has jx because this is a federal question issue and all justiciability requirements are met.
HOWEVER, federal court must abstain because there is a pending criminal court proceeding. Law student must raise the constitutional claim as a defense in state court and appeal through the state system.
Why must the federal court abstain?
Because federal courts generally cannot enjoin pending state proceedings.
Congress’ Authority Act
(1) There must be express or implied Congressional power.
*There is no general federal police power (There are (4) exceptions) ;
(2) Necessary & Proper Clause - Congress can choose any means, not prohibited by the Constitution to carry out its constitutional authority;
(3) Taxing & Spending Power
Congress’ Authority to Act
Generally, Congress does not have police power. Congress only has police power when it comes to:
(1) Military;
(2) Indian Tribes in Indian land;
(3) Federal Lands or territories;
(4) District of Columbia.
- Congress’ police power is “MILD”
Congress’ Authority to Act
Necesssary and Proper Clause
Congress has power to adopt all laws that are:
(1) Necessary; and
(2) Proper to carry out its power.
Congress can choose any means, not prohibited by the Constitution, to carry out its constitutional authority.
Congress’ Authority to Act
Taxing & Spending Power
The Constitution gives Congress the power to tax and spend for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution.
- Most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed.
The Commerce Clause
Congress may regulate all foreign and interstate commerce. This includes:
(1) Channels of interstate commerce (highways, waterways, internet);
(2) Instrumentalities of interstate commerce and persons/things in interstate commerce (trucks, planes, telephones, internet, elctricity, people, cattle);
(3) Economic activities that have a substantial effect on interstate commerce. (Woman growing small amounts of weed for medicinal purposes, to offset the effects of chemo. SCOTUS ruled against her - weed, like wheat, is a crop that is sold in interstate commerce, therefore when it looked at the cumulative effect of all of the weed that was grown for home consumption, the court said there was substantial effect on interstate commerce so congress can regulate).
* In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.
Also, (5) justices have said that Congress cannot regulate inactivity. Congress can only regulate activity.
i.e. Congress cannot regulate people not purchasing insurance under commerce clause, because this is regulating inactivity. However, this can be regulated under taxing power.
10th Amendment Limits on Federal Power
10th Amendment states that all powers not granted to the U.S., nor prohibited to the states, are reserved to the states or the people.
10th Amendment Limits on Federal Power
Anti-Commandeering Principle
Congress CANNOT compel state regulatory or legislative action (forcing the states to adopt laws or enact regulations).
10th Amendment Limits on Federal Power
Exceptions to 10th Amendment
Congress CAN induce state gov’t action by putting strings on grants if the conditions are:
(1) Expressly stated;
(2) Related to the purpose of the spending program; and
(3) Condition is not unduly coercive.
10th Amendment Limits on Federal Power
Exceptions to 10th Amendment (Commercial Activities)
Congress MAY prohibit harmful commercial activity by state gov’t.
i.e. Federal driver’s privacy protection act, which prohibited state dep’t motor vehicles from releasing private information about individuals (SSN, address). South Carolina brought a challenge that this law violated the 10th Amendment, Supreme Court ruled against SC and upheld the law because Congress was prohibiting harmful commercial activity.
Example of 10th Amendment Exception
When Congress wanted States to set a 20 year old limit drinking age, Congress amended the federal Highway Act to say
* “Any state taking federal highway money had to set a 20 year drinking age or would lose 5% of those funds.”
(1) Conditions were clearly stated;
(2) Related to the program highway safety; and
(3) 5% was not unduly coercive.
Section 5 of the 14th Amendment
Authorizes Congress to adopt law to enforce the 14th Amendment. The Supreme Court has ruled Congress cannot create new rights or expand the scope of rights. All that Congress can do is act to prevent or remedy violation of rights that have already been recognized by the courts.
Laws must be narrowly tailored - proportionate and congruent to having proven constitutional violations.
Delegation of Congressional Powers
There is no constitutional limit on delegation of congressional (legislative) powers. No law has been struck down as “excess of delegation” since 1937.
EXAM TIP: “Federal law is unconstitutional as an excessive delegation of legislative power” - ALWAYS A WRONG ANSWER.
Delegation of Congressional Powers
Non-Delegation Doctrine
Court will strike down the federal statute as invalid if it’s an unconstitutional excessive delegation of power. But no law has been struck down on that basis since 1937.
Delegation of Congressional Powers
Major Questions Doctrine
An administrative agency action will be invalidated if it’s on a major question of economic or political significance and there’s no clear direction from Congress.
Delegation of Congressional Powers
For Congress to Act - (2) Requirements:
For Congress to act, there always must be:
(1) Bicameralism (passage by both the House and the Senate); and
(2) Presentment (giving the bill to the President to sign or veto).
- The President must sign or veto the bill in its entirety.
Legislative Vetos
A legislative veto is where Congress attempts to override an executive action without bicameralism and/or presentment.
- Legislative vetos are always unconstitutional.
Line-item Veto
President attempts to veto part of a bill, while signing the rest into law.
- The Supreme Court held this is unconstitutional.
President must either veto the bill or sign the entire bill into law.
Federal Legislative Power
Congress may not delegate executive power:
To itself or its officers.
Federal Executive Power
Treaties
- Agreements b/w U.S. and a foreign country that are negotiated by the President and are effective when ratified by Senate.
- Treaties PREVAIL over conflicting state laws
- If a treaty conflicts w/ federal statute, the one adopted LAST in time controls
- If a treaty conflicts w/ U.S. Constitution, it is invalid. Constitution is the Supreme Law of the LAND.
Federal Executive Power
Executive Agreements
- An agreement b/w U.S. and a foreign country that is effective when signed by the President and the head of the foreign nation (No senate ratification is required)
- Executive agreements PREVAIL over conflicting state laws
- Anything done by a treaty can be done by an executive agreement. Court has never struck down an executive agreement as exceeding the scope of the President’s power usurping the authority of the senate.
- Executive agreements NEVER prevail over conflicting federal laws or the Constitution.
Federal Executive Power
Congress’ Limits on Recognition Power
It is unconstitutional for Congress by statute to designate the capital of a foreign country
Federal Executive Power
Immigration in U.S.
President has broad discretion in determining whether to admit individuals to the U.S.
Federal Executive Power
Commander-in-Chief
President has broad powers as Commander-in-Chief to use American troops in foreign countries.
- MBE Tip –> President always wins with sending troops to foreign countries! If this answer isn’t there, then pick “Case is dismissed due to political question”
Federal Executive Power
Appointment & Removal Power
(1) President appoints:
* Ambassadors; Federal Judges; Officers of U.S.
- Senate must confirm the nomination in order for the person to take office, but the appointment power is solely w/ the president.
(2) Congress may vest appointment of inferior officers:
* In the President; Heads of depts; or (3) Lower federal courts. It’s up to Congress, who has the appointment power among those three choices.
(3) Congress may NOT give itself or its officers appointment power —> MBE tested!
- President may NOT make recess appointments during intrasession recesses that are LESS than 10 days
Federal Executive Power - How can congress limit this power?
Removal power
Unless removal is limited by statute, the President may FIRE any executive branch officer. Congress by statute may limit removal but only if the following requirements are met:
(1) It must be an office where INDEPENDENCE from president is desirable;
(2) Congress cannot prohibit removal, it can limit removal to where there is GOOD CAUSE; and
(3) It cannot be a SINGLE PERSON who heads an agency and exercises substantial discretion.
Federal Executive Power
Impeachment and removal
President, VP, federal judges and officers of U.S. can be impeached and removed from the office for:
* (1) Treason;
* (2) Bribery;
* (3) High crimes; and
* (4) Misdemeanors.
Impeachment does NOT remove a person from office. Only if the senate convicts is the person removed from the office.
- Impeachment by the House of Representatives requires a MAJORITY vote;
- Conviction in the Senate requires 2/3 vote.
Federal Executive Power
President and Immunity
President has absolute immunity in civil suits for money damages of any actions WHILE IN OFFICE; However, President does NOT have immunity for actions that occurred prior to taking office.
Federal Executive Power
President and Privilege
President has EXECUTIVE privilege for presidential PAPERS and CONVERSATIONS, but such privilege must yield to other important government interests.
Federal Executive Power
President and Records being Subpoenaed
- President has NO immunity to keep his financial records from being subpoenaed by STATE GRAND JURY.
- But if financial records are subpoenaed by CONGRESSIONAL COMMITTEE, the court must balance competing interests.
Federal Executive Power
President Pardons
- President has the power to pardon those accused or convicted of FEDERAL CRIMES.
- President can NEVER pardon for state law crimes or civil liability.
- President can pardon as to criminal liability NOT as to civil liability. So if individual is found in civil contempt, President’s pardon power does not apply.
Fedaralism
Preemption
The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
(1) Express Preemption; or
(2) Implied Preemption;
Fedarlism
Express Preemption
Federal statute expressly states that federal law is exclusive in a field, then, state/local laws are preempted.
“Federal law is exclusive in the field”
Fedarlism
Implied Preemption (3)
Even if a federal statute is silent about preemption, implied preemption can be found in (3) ways:
(1) If federal and state laws are mutually exclusive, federal law preempts state law. (State law is struck down)
* State can set environmental standards stricter than federal law UNLESS Congress clearly prohibits it.
(2) If state law impedes the achievement of a federal objective, federal law preempts state law.
(3) If Congress evidences clear intent (legislative history/structure of law) to preempt state law, federal law preempts state law.
- Immigration law = Congress has intended that federal immigration law wholly occupy the field and thus attempts by state and local gov’t to regulate immigration will be deemed preempted.
MEII = Mutually Exclusive; Impede; Intent.
Fedarlism
States’ Tax/Regulating Federal Governmental Activity
- States may NOT tax or regulate federal governmental activity if substantial burden of federal activity
- Unconstitutional to pay state tax out of the federal treasury
- States’ tax regulating fed gov’t agency is commonly known as: “Inter-Governmental Immunity” = Immunity that federal government has from unwanted state taxation/regulation
- NOTE: States cannot apply pollution control laws to federal government
** MBE TRICK **
1) Store on army base operated and owned by federal gov and state wants to tax it = Unconstitutional - Tax will be paid by the Federal Gov’t. (CANNNOT PAY STATE TAX OUT OF THE FEDERAL TREASURY)
2) Mom & pop shop operated on federal land, state wants to tax it = Constitutional - Tax will be owed by the store.
Fedarlism
Dormant Commerce Clause
The Dormant Commerce Clause is the principle that a state or local law is UNCONSTITUTIONAL if it places UNDUE burden on interstate commerce.
- Always look at WHO is the actor in question - if it’s Congress doing something apply commerce clause; if it’s state/local gov’t then apply DCC.
NOTE: On the EXAM the DCC is referred to as: “Negative implications of the commerce clause”
Fedarlism
Privileges & Immunities Clause Article IV
P&I limits states’ ability to discriminate against out-of-staters w/ regard to privileges and immunities of citizenship.
- P&I applies ONLY when a state is DISCRIMINATING against out of staters
(1) Law must discriminate against out-of-staters;
(2) Discrimination must be with regard to fundamental rights or important economic activities (Note –> different elk hunting license fees - P&I did not apply because it is not an important economic activity, merely a hobby);
(3) Corporations and non-citizens cannot invoke the privileges and immunities clause;
(4) Discrimination must be necessary to achieve an important government purpose. (Substantial gov’t interest, means must be necessary - no lesser discriminatory alternative can achieve its objective)
On Exam: If it’s an individual being discriminated against apply both DCC and P&I IV. But, if challenger is a corporation only apply DCC.
