Constitutional Law Flashcards
May courts issue advisory opinions?
Federal courts cannot issue advisory opinions, which are decisions that lack (1) an actual dispute between adverse parties, OR (2) any legally binding effect on the parties.
What are the rules regarding Ripeness?
To avoid issuing advisory opinions, courts wait until laws and policies have been formalized and can be felt in concrete ways. This means that PRE-ENFORCEMENT REVIEWS of laws or policies are generally not ripe. 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 (legal issues not requiring factual development) AND (2) The plaintiff would suffer substantial hardship in the absence of review.
What is Mootness and its exception(s)?
A LIVE CONTROVERSY must exist at all stages of review. Therefore, the plaintiff needs to be suffering from an ONGOING INJURY, or else the case will be dismissed as moot.
- EXCEPTION(S): A claim is not considered to be moot, even if the injury has passed, when (1) the case is capable of repetition but evading review; (2) D voluntarily stops but can resume; or (3) the class representative’s controversy has become moot but the claim of at least one other class member is still viable.
What are the components of Standing?
A person must have standing at all stages of litigation, including on appeal.
ELEMENTS:
- Injury in Fact: To have standing, a person needs to show an injury in fact, which requires both (1) A particularized injury (affects P in a personal and individual way) AND (2) A concrete injury (one that actually exists—not hypothetical).
- Causation: There must be a causal connection between the injury and the conduct complained of (injury traceable to the defendant).
- Redressability: A decision in the litigant’s favor must be capable of eliminating their harm (EX: through money damages or an injunction).
What is the No Citizenship Standing rule?
People have no standing merely as “citizens” or “taxpayers” to claim that government action violates federal law or the Constitution. The injury is too generalized.
What are exceptions to the No Citizenship Standing rule?
- Challenging tax liability.
- Tenth Amendment: A person may have standing to allege that federal action violates the Tenth Amendment by interfering with powers reserved to the states as long as the person has a redressable injury in fact (EX: deputy sheriffs required to do handgun checks under federal law challenging the law as a violation of the 10A).
- Congressional Spending: TAXPAYERS have standing to challenge congressional spending (not executive spending) measures on First Amendment Establishment Clause grounds as a violation of taxing and spending powers (EX: congressionally approved federal expenditures to aid parochial schools).
When must injury occur for Standing purposes?
Under the Injury in Fact prong, the injury must have already occurred or imminently will occur. In a suit for pre-enforcement relief (by injunction or declaratory judgment), look to see whether there is a likelihood of future harm.
May a third-party claimant stand in for another party that has suffered an injury?
Generally, there is no third-party standing. The plaintiff must be the one who suffered the injury.
EXCEPTIONS:
- Asserting Rights of Others: A claimant with standing in their own right may assert the rights of a third party if: (1) it is difficult for the aggrieved party to assert their own rights, OR (2) a close relationship exists between the claimant and the third party.
- Organizations: 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 (EX: they’re not seeking individualized damages).
- Free Speech: A person has standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary (in other words, that the restriction was overbroad), even if that person’s own speech would not be protected under the First Amendment. Essentially, the plaintiff can bring a claim on behalf of others whose speech would be protected under the First Amendment. However, this rule does not apply to restrictions on commercial speech.
What is Congressional Conferral of Standing?
Congress can’t eliminate the case or controversy requirement and, thus, cannot grant standing to someone who doesn’t have an injury. However, a federal statute may create new interests, injury to which may be sufficient for standing.
When does a plaintiff have Standing to Enforce Federal Statutes?
A plaintiff may have standing to enforce a federal statute if they are within the “zone of interests” Congress meant to protect (that is, a court is likely to find standing if it concludes that Congress intended the statute to protect such persons and also intended to allow private persons to bring federal court actions to enforce the statute).
What result for Standing when a plaintiff knowingly triggered the application of a legal rule?
Standing isn’t defeated simply because the plaintiff wanted to bring a case to test the constitutionality of a particular rule. The injury is still traceable to the government, even if the plaintiff knowingly triggered the application of the rule.
What is Sovereign Immunity regarding the 11A?
The private parties cannot sue states in federal or state courts.
EXCEPTIONS:
- Express Waiver: States can be sued if they consent to it (that is, by waiver). Most states have expressly waived sovereign immunity, at least to a limited extent, in their tort claims acts.
- Implicit Consent / Structural Waiver: When they joined the federal union, states implicitly agreed that their sovereign immunity would yield to certain federal powers (EX: eminent domain and military-related powers). Structural waiver applies when: A federal power is complete in itself AND The states implicitly consented to the federal government exercising that power as part of the plan of the Constitution.
- Local Governments/Entities: Local governments (EX: a city or county) are not protected by sovereign immunity. Neither are entities like police departments. So these entities can be sued.
- Federal government can sue states.
- A person can sue a state in relation to a bankruptcy proceeding.
- A person can sue a state official (1) for damages personally suffered or (2) to enjoin the official from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state.
- Congress Abrogates: Congress can remove a state’s immunity as to actions created under the Fourteenth Amendment power to prevent discrimination, but it must be unmistakably clear that Congress intended to remove the immunity.
What is the Adequate and Independent State Grounds doctrine?
The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds—even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. If the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.
What police powers does Congress have?
Congress generally does not have general police powers, but they do have police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations.
What is the Necessary and Proper Clause?
Congress has the power to make all laws necessary and proper (appropriate or rational) to carry out any of the legislative ENUMERATED POWERS in Article I (EX: raise and support armies), as long as that law doesn’t violate another provision of the Constitution.
- This is a low hurdle—laws can be foolish, just not irrational.
What is the 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.
- The federal government can tax and spend for the general welfare, but Congress can’t directly legislate for the general welfare.
What are the conditions for Congress’ use of the Spending power?
Under the spending power, Congress can impose conditions on the grant of money to state or local governments. These conditions are valid if they (1) are clearly stated, (2) relate to the purpose of the program, (3) are not unduly coercive, and (4) do not otherwise violate the Constitution.
What is the 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:
- Regulate the channels of interstate commerce (EX: highways, waterways, telephone lines, the internet).
- Regulate the instrumentalities of interstate commerce (EX: planes, trains, automobiles) and persons and things in interstate commerce.
- Regulate activities that have a substantial effect on interstate commerce.
Can Congress regulate purely intrastate activity?
When Congress attempts to regulate intrastate/local commercial activity as having a substantial effect on interstate commerce (3rd prong) the Court will uphold the regulation if it can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.
- The rule detailed above applies only when the regulated intrastate activity is economic or commercial in nature. If the regulated intrastate activity is not commercial or economic, the Court generally will not aggregate the effects and will uphold the regulation only if Congress can show that it nonetheless has a direct substantial economic effect on interstate commerce, which Congress generally won’t be able to do.
What limits apply to Congress’ Commerce power?
- 10A: Congress can’t regulate non-economic activity traditionally regulated by the states.
- Congress can’t compel activity.
What is the Delegation Doctrine?
Typically, Congress can delegate rulemaking or regulatory power to the executive branch (including administrative agencies) or judicial branch as long as intelligible standards are set and the power isn’t something that is uniquely confined to Congress (EX: the power to declare war or impeach). A general standard will usually suffice as an intelligible principle.
What is the Major Questions Doctrine?
When an agency adopts regulations that have extraordinary economic and political significance (“major questions”), it must be able to point to clear congressional authorization for the exercise of such power. Modest, vague, or subtle language in the act delegating power to the agency is not sufficient to support agency action adopting a major change. Absent a clear delegation of power to effect a major change, if an agency adopts a policy or regulation effecting a major change, it will be struck down as being beyond the agency’s delegated authority.
What are the different levels of Presidential Power? What are their strengths?
- President’s power is strongest when authorized by Congress to do it.
- If the president acts where Congress is silent, then the president is in a “twilight zone.” If supported by tradition and history, the actions will likely be upheld.
- When Congress has said that the president cannot do something, his power is at its lowest ebb and is least likely to be upheld as constitutional.
What Foreign Powers does the president have?
Commander-in-Chief Power: Can act militarily in actual hostilities against the United States without a congressional declaration of war to protect American lives and property.
Treaty Power: The President has the power to enter into treaties with the consent of two-thirds of the Senate.
- Constitution > Federal Law = Treaties > State Law
- Conflicts among federal laws = first in time rule
What is an Executive Agreement?
Agreements made by the president with foreign nations. No Senate Approval is needed for these.
- Constitution > Federal Law > Executive Agreements > State Law
When can a state regulate interstate commerce?
A state’s regulation of interstate commerce in an area where Congress has not already acted is valid if the regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce.
What are the exceptions to the general rule under the Commerce Clause prohibiting states from discriminating against out-of-state competition?
- Congressional approval.
- When the state acts as a market participant (state is itself a buyer or a seller in a relevant market).
What does the 10A say?
Powers not granted to the federal government are reserved to the states or to the people.
What limits are there on state police powers?
The fact that the Tenth Amendment reserves all other powers to the states means that states have general police powers—that is, they can regulate the health, safety, and welfare of their people. Such regulations will be upheld if they are rational, unless they burden a fundamental right or involve a suspect or quasi-suspect classification.
What effect does the Supremacy Clause have?
When there is a conflict between federal law and state law, the federal law prevails and the state law is preempted.
What are the types of Preemption?
- Express: A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation. Express preemption clauses will be narrowly construed.
- Conflict Between State and Federal Law (Implied): If a state law conflicts with federal law requirements, such that it would be impossible to follow both laws, the state law will be held to be impliedly preempted.
- State Prevents Achievement of Federal Objective (Implied): If a state or local law prevents achievement of a federal objective, it will also be held to be impliedly preempted. This is true even if the state law was enacted for some valid purpose and not to frustrate the federal law (for example, state law providing for suspension of driver’s license of persons who fail to pay off an auto accident case judgment, regardless of the person’s discharge in bankruptcy, is invalid).
- Field Preemption (Implied): A valid federal law may impliedly “occupy” the entire field, thus barring any state or local law even if the state or local law is nonconflicting. The courts will look at the regulatory scheme to determine whether Congress intended to preempt the entire field (for example, if federal laws are comprehensive or an agency was created to oversee the area, preemption may be found).
What presumptions regarding state police power apply to preemption?
In all preemption cases, but especially in cases involving a field traditionally within the power of the states (for example, regulations involving health, safety, or welfare), courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.
What is the Privileges and Immunities clause?
This prohibits states from discriminating against out-of-state citizens. This prohibits discrimination by a state against nonresidents of the state when the discrimination concerns either IMPORTANT COMMERCIAL ACTIVITIES (EX: pursuit of a livelihood) OR FUNDAMENTAL RIGHTS.
However, the Clause applies only if the discrimination is intentionally protectionist in nature (EX: state cannot charge nonresident commercial fishermen substantially more for a commercial fishing license than resident commercial fishermen).
- Applies only to US citizens.
What is the Dormant Commerce Clause?
Protectionist laws favoring in-state over out-of-state commerce are presumptively invalid. If the 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) there are no less restrictive means available.
In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem.
- Laws that on their face are neutral are presumptively valid, but if their effects are unduly burdensome to out-of-state commerce, then they will be invalid.
Does the Constitution apply to private parties?
Only the 13th amendment applies to private parties.
Do the Amendments apply restrictions to the states?
The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law. The Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to vote on account of race or color.
