Constitutional Law Flashcards
The Requirements for Cases and Controversies (Justiciability Requirements)
- Standing (Most important)
- Ripeness
- Not Moot
Standing
Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication.
- Injury
- Causation
- Redressability
- No Third Party Standing
- No Generalized Grievances
Injury
The plaintiff must allege and prove that he or she has been INJURED or IMMINENTLY will be injured.
Plaintiff may only assert injuries that they personally have suffered.
Plaintiff seeking injunctive or declaratory relief must show a likelihood of future harm.
Causation and Redressability
The Plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury.
What about third Party Standing?
A plaintiff cannot assert claims of others, of third parties, who are not before the court.
Exceptions to Third Party Standing
- If there is a close relationship between the plaintiff and the injured third party.
- If the injured third party is unlikely to be able to assert his or her own rights.
- An organization may sue for its members if:
- members would have standing
- the interest are germane to the organization’s purpose
- Neither the claim nor relief requires participation of the individual members
What about generalized grievances for meeting the Standing requirements?
The Plaintiff must not be suing solely as a “citizen” or as a “taxpayer” interested in having the government follow the law.
Look for this to render it generalized.
What is the exception to the generalized grievances?
Taxpayer have standing to challenge government expenditures pursuant to federal, state, or local statutes as violating the Establishment Clause.
Ripeness
The question whether a federal court may grant pre-enforcement review of a statute or regulation.
Case or Controversies
Tip: Whenever you have a request for declaratory judgment, look for a ripeness issue.
What are the factors to consider for Ripeness?
- The hardship that will be suffered without pre-enforcement review;
AND - The fitness of the issues and the record for judicial review.
Mootness
If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot.
Exceptions to Mootness
- Wrong capable of repetition but evading review.
- Voluntary cessation. If the D voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot.
- Class action suits.
- so long as a member is still being injured.
Political Question Doctrine
Refers to constitutional violations that the federal courts will not adjudicate.
Examples of Political Question Doctrine and Dismissed
- The Republican Form of Government Clause
- look for this language, answer is it is not justiciable - Challenges to the President’s conduct of foreign policy
- Challenges to the impeachment and removal process
- Challenges to partisan gerrymandering.
What do you do for questions that ask about standing?
Look for the one that was injured directly.
The correct answer the is the plaintiff that suffered a monetary harm.
What type of cases are available for Supreme Court Review?
- All cases from state courts come to the Supreme Court by Writ of Certiorari.
- All cases from the United States courts of appeals that come from Writ of Certiorari
- Appeals exist for decisions of three-judge federal district courts
- Original and Exclusive jurisdiction for suits between state governments.
**After final judgment from the three mentioned venues - FINAL JUDGMENT RULE - exhaust state and federal appeals
Lower Federal Court Review
- Federal Courts (and state courts) may not hear suits against state governments. (Sovereign Immunity)
- Abstention. Federal Courts may not enjoin pending state court proceedings.
**All justiciability requirements need to be met.
The Principle of Sovereign Immunity
- The 11th Amendment bars suits against states in federal court.
- Sovereign immunity bars suits against states in State Courts or federal agencies.
Exceptions to when States may be sued
- Waiver
- States may be sued pursuant to federal laws adopted under Section 5 of the 14th Amendment.
- The federal government may sue state governments.
- Bankruptcy proceedings
What about suits against State officers?
They are allowed:
- Sued for injunctive relief
- Sued for money damages to be paid out of their own pockets.
**May not be sued if it is the state treasury that will be paying retroactive damages.
Federal Legislative Power
Federal Legislative Power
Congress’s Authority to Act
- There must be express or implied Congressional power.
- MILD (Military, Indian, Land, DC) - The necessary and proper clause
- The taxing/spending power.
- Commerce power
Taxing and Spending Clause
Congress may tax and spend for the general welfare.
The Commerce Power
- Congress may regulate the channels of interstate commerce.
- Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce.
- Congress may regulate economic activities that have a substantial effect on interstate commerce.
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Is there any limit on Congressional Powers?
- 10th Amendment. (most important)
AND - Section 5 of The 14th Amendment
10th Amendment Limit on Congressional Powers
All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
- Congress cannot compel state regulatory or legislative action. CAN PUT STRINGS ON GRANTS AS LONG AS NOT UNDULY COERCIVE.
**Congress may prohibit harmful commercial activity by state governments.
Section 5 of the 14th Amendment Limit on Congressional Powers
Congress may not create new rights or expand the scope of rights.
Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations.
Delegation of Powers
- No limit exists on Congress’ Ability to delegate legislative power.
- Legislative vetos and line-item vetos are unconstitutional
- Must go through Bicameralism and Presentment (i.e. checks and balances
**Obviously cannot delegate executive or judicial power to itself.
The Federal Executive Power
- Foreign Policy
2. Domestic Affairs
What does Foreign policy contain?
- Treaties
- Executive Agreements
- Broad powers as Commander-in-Chief to use American troops in foreign countries.
Treaties
Agreements between the US and a foreign country that are negotiated by the President and are effect when RATIFIED by the Senate.
Effectiveness of Treaties
- Treaties prevail over conflicting state laws.
- If a treaty conflicts with a federal statute, the one adopted last in time controls. GOING TO BE ON EXAM
- If a treaty conflicts with the US Constitution, it is invalid.
Executive Agreements
An agreement between the US and a Foreign Country that is effective when signed by the President and the head of the foreign nation.
No need for Senate Ratification
Effectiveness of Executive Agreements
- Executive Agreements can be used for any purpose.
- Executive Agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.
What domestic affairs are handled by the Executive Branch?
The appointment and removal power.
Power to pardon those accused or convicted of federal crimes.
- NOT STATE LAW CRIMINAL CONVICTIONS - ONLY FOR CRIMINAL
Privilege for presidential papers and conversations.
The Appointment Power under Executive Branch
The president appoints ambassadors, federal judges and officer of the US.
Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts.
Congress may not give itself or its officers this power.
The Removal Power
Unless removal is limited by statute, the President may fire any executive branch office.
How can Congress limit the Removal Power?
- It must be an office where independence from the President is desirable
- Independent Counsel, Prosecutor
- Not cabinet members
AND - Congress cannot prohibit removal, it can limit removal to where there is good cause.
Impeachment and Removal
The President, the VP, Federal judges and officers of the US can be impeached and removed for: 1. Treason 2. Bribery 3. High crimes AND 4. Misdemeanors
Impeachment
Does not remove a person from office.
Impeachment by the House of Representatives requires a majority vote.
Conviction in Senate requires a 2/3 vote.
Presidential Immunity
Absolute immunity to civil suits for money damages for any actions while in office.
No immunity for actions that occurred prior to taking office.
FEDERALISM
FEDERALISM
Preemption (4-6 questions on Multistate)
The Supremacy Clause of Article 6 provides that the Constitution and laws and treaties made pursuant to it, are the supreme law of the land.
- Express preemption
- Implied preemption
- States may not tax or regulate federal government activity (Inter-governmental immunity - refers to immunity federal government from unwanted state taxation)
- Can tax mom and pop store
- Cannot tax federal army surplus stores
Express Preemption
If a federal statute explicitly says that federal law is exclusive in a field.
Implied Preemption
- If the federal and state laws are mutually exclusive, federal law preempts state law.
- not possible to simultaneously comply - If state law impedes the achievement of a federal objective, federal law preempts state law.
- If Congress evidences a clear intent to preempt state law, federal law preempts state law.
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* *Environmental standards can be stricter unless clearly preempted by Congress.
* *Federal Government does not have to comply with State Pollution Laws.
Dormant Commerce Clause
Negative implications of the commerce clause.
The principle that a State or local law is unconstitutional if it places an excessive burden on Interstate Commerce.
Limit on what a State or Local government can do.
The Privileges and Immunities of Clause of Article 4
No State may deny citizens of other States of the privileges and immunities that it accords its own citizens.
Anti-discrimination provision.
The Privileges and Immunities Clause of the 14th Amendment
Must involve the right to Travel.
No State shall deprive any Citizen of United States Citizenship.
Question to Ask when dealing with a law’s application to citizens of a different state
Does the state law discriminate against out-of-states?
Analysis if the law does NOT discriminate
- The privileges and immunities clause of the Article 4 does not apply.
- If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.
- If the benefit exceeds the burden, the law is upheld
Analysis if the Law Discriminates against out-of-staters
- If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve the important government purpose.
Exceptions: - Congressional Approval, - Market Participant Exception- No other less restrictive way.
- If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the privileges and immunities clause of Article 4 UNLESS it is necessary to achieve important government purpose.
**Corporations and Aliens cannot use the privileges and immunities and clause.
GREAT COMPARISON CHARTS ON PAGE 16, 17
GREAT COMPARISON CHARTS ON PAGE 16, 17