Constitutional Law Flashcards
Federal courts can hear a matter only if there is a “case or controversy.” Whether there is a “case or controversy” (or justiciable) depends on:
(1) What the case is requesting (no advisory opinions)
(2) When it is brought (is it ripe or moot)
(3) Who is bringing it (does the plaintiff have standing?
What are Advisory Opinions?
decisions that (1) lack an actual dispute between adverse parties, OR (2) any legally binding effect on the parties.
Ripeness
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. Unless: (1) issues are fit for decision (legal decision that doesn’t depend on factual development. Factual development meaning relies on uncertain or contingent future events that might not occur) AND (2) the plaintiff would suffer substantial hardship in the absence of review.
Bars consideration of claims BEFORE they have been developed
Mootness
Plaintiff must show suffering from an ongoing injury.
Bars consideration of claims AFTER they have been developed.
Standing (3 components)
Injury, Causation, and Redressability
Injury in Fact
to have standing, a person needs to show an injury in fact, which requires both: (1) a particularized injury: an injury that affects the plaintiff in a personal and individual way AND (2) a concrete injury: one that actually exists (that is, not hypothetical).
For a taxpayer to have standing as such____
Congress’s spending power must be involved. Thus, for example, a person would not have standing as a taxpayer to challenge federal government grants of surplus property to religious groups (because Congress is using the property power rather than the spending power) or expenditures of general executive branch funds (because the executive branch is doing the spending, not Congress).
Standing for Free Speech Overbreadth Claims.
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.
Causation (in standing req.)
There must be a causal connection between the injury and the conduct complained of.
Redreassability
A decision in the litigant’s favor must be capable of eliminating their harm
Sovereign Immunity and the Eleventh Amendment
Bars a private party’s suit against a state in federal and state courts. CAN’T SUE STATES Similarly, sovereign immunity bars claims against a state in federal and state agencies.
A plaintiff may have standing to enforce a federal statute if they are within the “__________” 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).
Zone of interests
Sovereign Immunity and the Eleventh Amendment EXCEPTIONS
-waiver: express or structural (most states have expressly waived it, at least to limited extent, in their tort claims act)
-Local governments and entities (ex: police departments, a city, or county)
-STATES can sue other states!
-FEDERAL GOV. can sue states.
-Bankruptcy proceedings (person can sue a state in relation to a bankruptcy proceeding).
-Can sue state officials (injunctive relief to stop violation of the Constitution or federal law, even if this will require prospective payment from the state OR money damages from their own pockets)
-Congress abrogates (civil rights laws under the 14th Amend.)
Political Questions
will not be decided. There are issues (1) constitutionally committed to another branch of government OR (2) inherently incapable of judicial resolution.
Adequate and Independent State Grounds
If a state court decision rests on two grounds, one that’s state law and one that’s federal law, and if the Supreme Court’s reversal of the federal law ground will not change the result in the case, then the Supreme Court can’t hear the case.
ENUMERATED AND IMPLIED POWERS
Congress can exercise the powers ENUMERATED in the Constitution (under Article I, Section 8) plus any powers NECESSARY AND PROPER to carry out any of its enumerated powers.
Congress does not have general police power
Congress does not have general police powers (unlike states)
-EXCEPTIONS: Federal lands, native american reservations and D.C.
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 powers enumerated in Article I, 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.
-Standing alone not basis for federal power, must be in furtherance of enumerated power (linked to another federal power).
Taxing and Spending Power
Congress has the power to TAX AND SPEND to promote general welfare. Taxing and spending may be for ANY PUBLIC PURPOSE not prohibited by the Constitution.
BUT, Congress CAN’T DIRECTLY LEGISLATE for the general welfare. So, nonspending regulations can’t be supported by the General Welfare Clause.
Spending Power Conditions (“strings”)
Under the spending power, Congress can impose conditions onthe grant of money to state or local governments.
These conditions are valid if:
(1)-clearly stated
(2)-related to purpose of spending program
(3)-constitutional
(4)-not unduly coercive
When a spending power condition is unduly coercive
Whether states could choose to turn down new money in turn of the existing money.
Federal Taxes under the Taxing and Spending Power
Most federal taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare.
Rarely, a tax may be regarded as an
impermissible regulatory “penalty”— for example, if it seeks to compel rather than simply influence behavior.
Commerce Power
Congress can 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 (for example, highways, waterways, telephone lines, the internet)
(2) Regulate the INSTRUMENTALITIES of interstate commerce (for example, planes, trains, automobiles) and persons and things in interstate commerce OR
(3) Regulate ACTIVITIES THAT HAVE A SUBSTANTIAL EFFECT on interstate commerce
When can Congress regulate INTRASTATE activity?
When Congress attempts to regulate intrastate (in other words, local) COMMERCIAL activity under the third prong (activities that have a substantial effect on interstate commerce) 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.
Can Congress regulate NONCOMMERCIAL INSTRASTATE activity?
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.
Tenth Amendment Limitation on Congress’s Commerce power
The Court has interpreted the Tenth Amendment to preclude Congress from regulating NONECONOMIC INTRASTATE ACTIVITY in areas TRADITIONALLY REGULATED BY STATE OR LOCAL GOVERNMENTS.
Example: Congress cannot criminalize intrastate domestic violence against women, even though in the aggregate such violence substantially affects interstate commerce because of the loss of work, travel, and spending by victims.
The Commerce Clause gives Congress power only to regulate EXISTING COMMERCIAL ACTIVITY; it does NOT give Congress power to ___________.
Compel Activity.
Commerce Clause power to Prohibit Private Discrimination
Under the commerce power, Congress may prohibit PRIVATE discrimination in activities that might have a substantial effect on interstate commerce.
Contrast that with PUBLIC discrimination (that is, by state or local governments), which Congress can DIRECTLY regulate under its Fourteenth Amendment enforcement power.
Note: Because almost any activity taken cumulatively might have a substantial effect on interstate commerce, the Commerce Clause is an important basis for civil rights laws.
War and Related Powers
The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
Investigatory Power
Congress has a broad implied power to investigate to secure information for potential legislation or other official action (such as for gathering information relating to impeachment). Investigation must be expressly or impliedly authorized by the appropriate congressional house.
Under this power Congress can subpoena the President’s personal info. The subpoena must advance a LEGITIMATE LEGISLATIVE PURPOSE, but the Court will also BALANCE, Congress’s interests in obtaining he info against the burdens on the President.
Property Power
Congress can dispose of and make rules for territories and other properties of the United States. Although there is no express limitation on Congress’s power to DISPOSE of federal property, federal TAKINGS of private property (eminent domain) must be pursuant to an enumerated power under some other provision of the Constitution.
Postal Power
Congress has exclusive postal power.
Congress may classify and place reasonable restrictions on use of the mails but may not deprive any citizen or group of citizens of the general mail “privilege.”
Power Over Citizenship
RESIDENT aliens must get NOTICE AND A HEARING before they can be deported.
Congress can’t take away the citizenship of any citizen—native-born or naturalized—without their consent.
Delegation of Legislative Authority
Congress can delegate power but must include intelligible standards
-usually, general standard suffices.
SEPARATION OF POWERS—THE REQUIREMENT OF BICAMERALISM AND PRESENTMENT
To pass a law, Congress must use BICAMERALISM (passage of a bill by both houses of Congress) followed by PRESENTMENT to the President for signature or veto.
Attempts by Congress to create laws or control the enforcement of laws without bicameralism and presentment are invalid.
No Line Item Vetoes
The requirements of bicameralism and presentment mean that Congress cannot give the President a line item veto power—that is, giving the President the power to cancel parts of a bill while approving others is an unconstitutional delegation of legislative power. The President can only approve or reject a bill as a whole.
SPEECH OR DEBATE CLAUSE—IMMUNITY FOR FEDERAL LEGISLATORS
Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.
Note: Immunity does NOT cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.
Implied Presidential Powers
Strongest when authorized by Congress.
if the president acts with the implied or express authority of Congress, presidential authority is at its maximum and the actions are likely valid.
THE EXECUTIVE POWER
Presidential power derives from Article II
Treaty Power
Negotiated by president
Senate approved by 2/3 Senate
Constitution>(Federal law=Treaties)> State law
Conflicts with federal law: the last in-time prevails
Executive Agreements
no senate approval
Constitution > Federal law> Executive Agreements> state law
(federal statutes and treaties prevail over executive agreements)
Tenth Amendment
Powers not granted to federal gov. are reserved to states or ppl.
State General Police Powers
states 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
Anti-Commandeering
congress cannot compel states to enact state legislation or to administer federal programs.
Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, it’s possible the Court will use the Tenth Amendment to prohibit the tax.
Congress can incentivize states however (conditional grants)
Anti-Commandeering EXCEPTIONS
(1) Civil Rights:Under its Fourteenth Amendment enforcement powers, Congress may restrict states from discriminating in violation of equal protection or depriving rights protected by due process.
(2)Tax or Regulation Applying to BOTH State and Private Entities.
Preemption
Express (when congress says, federal law trumps, or federal law is the only game in town with respect to the subject of the law)
Implied (congress doesn’t expressly claim, but nonetheless federal law impliedly states)
—Conflict (between federal law and state law)
—State law impedes federal law (even if not direct conflict)
—Field preemption (such extensive federal reg. in a field, court will say congress impliedly preempted the entire field barring state law regardless if they conflict)
Supremacy Clause
a federal law may supersede or preempt state (or local) laws. Federal law includes the Constitution, federal statutes and regulations, treaties, and executive agreements.
Article IV Privileges and Immunities
Prohibits states from discriminating against out of state citizens:
—discrimination concerns either: impt. commercial activities & ability to earn a living OR fundamental rights
—-only US citizen (aliens, corp. and other non citizens are out of luck)
—-not absolute. (if state law is necessary to achieve important government purpose and no less restrictive means available/no alternatives)
—-applies only if discrimination is INTENTIONALLY PROTECTIONIST!
NOTE: CORPORATIONS AND ALIENS ARE NOT PROTECTED BY THIS CLAUSE!!!! (In contrast they are protected by the EP and DPC of the 14th Amen. and they can claim a law violates the Dormant Commerce Clause)
Article IV Privileges and Immunities Clause and the Dormant Commerce Clause Relationship.
Although the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, they both have to be considered in analyzing bar exam questions.
Fourteenth Amendment—Privileges of National Citizenship
States may not deny their citizens the privileges or immunities of NATIONAL citizenship (for example, the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right
to interstate travel).
Corporations are NOT protected by this Clause.
Regulation of Interstate Commerce
When Congress regulates interstate commerce, conflicting state laws
are superseded and even nonconflicting state or local laws in the
same field may be preempted.
Dormant Commerce Clause
State law can’t unduly burden interstate commerce.
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. If it does, the state or local regulation will violate the Commerce Clause.
Even when Congress has not acted, the Commerce Clause restricts the state regulation of interstate commerce; states may not favor local economic interests or unduly burden interstate commerce.
Dormant Commerce Clause. Discriminatory state law is presumptively invalid.
BUT, valid if:
BALANCING TEST
(1) necessary to achieve important, noneconomic state purpose unrelated to protectionism AND (2) no non-discriminatory alternatives in achieving that purpose.
