Constitutional Law Flashcards
What are the source and limit of judicial power?
Art. III and actual cases and controversies.
What is justiciability?
Whether lawsuit is capable of judicial resolution.
What is the no advisory opinions rule?
Federal courts may not render advisory opinions, which lack an actual controversy between adverse parties or any legally binding effect on the parties.
When is a controversy not ripe?
Request for pre-enforcement review of laws aren’t ripe unless substantial hardship in absence of review and issues and record are fit for review.
When is a controversy live (not moot)?
Courts may only decide live controversies. It is live if 1) in suit for declaratory or injunctive relief, challenged law or conduct continues to injure OR 2) in suit for damages, P not made whole.
What are the exceptions such that when injury has passed the controversy is not moot?
1) Injury capable of repetition that evades review; 2) D voluntarily stops challenged activity, but may restart at will; 3) in class action, one P suffers ongoing injury.
What does standing consist of?
Injury, causation, redressability.
What is an injury?
Almost any harm counts. EX: physical, econ, environmental, loss of constitutional or statutory rights.
What is not an injury?
Ideological injury or generalized grievances as a citizen or tax payer. EXCEPT: taxpayer may challenge own tax liability and congressional spending in violation of the Establishment Clause.
When must the injury occur?
Must have occurred or will imminently occur. If injunctive or declaratory relief, must show likelihood of future harm.
Who must be injured?
Injury must be permanently suffered by P rather than those not before the court. No 3d party standing.
What are the exceptions to the no 3d party standing rule?
1) Close relationship: P injured, 3P unable to use, P can adequately rep 3d party. 2) Organizations: members have standing, member injury related to purpose of org, member participation not required. 3) Free speech overbreadth: substantial overbreadth in terms of law’s legit to illegit sweep + not commercial speech.
When is there legislative standing?
Legislators may challenge acts that injury them personally rather than the legislature generally.
What is the standing causation requirement?
P must show injury is fairly traceable to D.
What is the redressability requirement?
P must show that favorable court decision can remedy the harm.
What is the political question doctrine?
Federal courts will not decide political questions i.e. questions 1) committed by Constit to political branches of govt or 2) incapable of or inappropriate for judicial resolution.
What are examples of political questions?
Challenges under guarantee clause, foreign affairs, impeachment process, partisan gerrymandering, election or qualifications of members of Congress, seating of members at national political conventions.
What is sovereign immunity?
Can’t sue the government.
What are the exceptions to sovereign immunity?
State can be sued if 1) waiver, 2) P is other state or fed govt, 3) bankruptcy proceedings, 4) clear abrogation by Congress under 14th AM powers to prevent discrim.
What suits are not barred by sovereign immunity?
Any suit against local govt or any suit against state officers for injunctive relief or money damages from own pocket.
What is abstention?
Federal courts generally decline to decide a federal constitutional claim that turns on an unsettled Q of state law. Federal courts generally may not enjoin pending state judicial or administrative proceedings.
What is the final judgment rule?
SCOTUS only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or a 3 judge DC.
What is the independent and adequate state grounds doctrine?
SCOTUS won’t review a federal Q if the state court decision rests on an independent and adequate state law ground. IASG exists if outcomes would be the same regardless of how the FQ is decided.
What are the source and limit of legislative power?
Art. I; enumerated powers (no general police power)
How does the necessary and proper clause work?
Not a basis of legislative power. Allows Congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution.
What’s the general rule for taxing and spending power?
Congress may tax and spend to provide for the general welfare. This includes any public purpose not limited by the constitution, even if not w/in an enumerate power.
When may Congress attach spending conditions?
Strings must relate to the purpose of spending and not violate the Constitution. The may not be unduly coercive.
What commerce may congress regulate?
Commerce w/ foreign nations, Indian tribes, and among states.
What may Congress regulate w/ respect to interstate commerce?
Channels if IC, instrumentalities of IC, and substantial effect on IC in aggregate even if purely local activities. This is the broadest basis for CC regulation.
What are the limits to IC regulation?
Non-economic activity in area traditionally regulated by states and compelling participation in commerce.
How does the 14A impact Congress’s power to regulate commerce?
May ban private discrimination under commerce power and seek to prevent and remedy state discrimination under 14A power to enforce the guarantee of equal protection.
When may congress delegate power to agencies?
May broadly delegate power as long as some intelligible principal guides the exercise of delegated power.
What power may not be delegated to the president?
Line item veto. Violates bicameralism and presentment.
What power may congress not delegate itself?
No delegation of legislative veto to void duly enacted laws w/o bicameralism and presentment.
What is the speech and debate clause?
Members of congress enjoy immunity from civil and criminal liability for legislative actions.
What is prez enforcement power?
Power and duty to enforce and execute the laws.
What is prez appointment power?
Must appoint ambassadors, federal judges, and officers of the US w/ advice and consent of majority of senate. Congress may also vest appointment power in Prez, department heads or judiciary for “inferior officers.”
What is prez removal power?
Prez may remove high level exec officers at will. Congress may limit prez removal of other exec officials to good cause. Congress may not remove exec officials except through impeachment.
What is prez pardon power?
May pardon anyone accused or convicted of federal crime EXCEPT no power to pardon crimes underlying impeachment by HoR and does not extend to civil liability.
Who holds the war power?
Congress alone has power to declare war. Prez as commander in chief has broad discretion to deploy troops internationally to protect American lives and property (Congress checks through power of purse).
How does Prez create treaties?
Prez negotiates; senate approves by 2/3 majority; treaty trumps existing and future state law; treaty trumps existing but not future federal law.
How does Prez create exec agreement?
Prez negotiates; no senate approval required; EA trumps existing and future state law; Fed law trumps EA.
Who may be impeached and for what?
Congress may impeach Prez, VP, federal judges, and all officers of US for treason, bribery or other high crimes and misdemeanors.
What is the impeachment process?
House passes articles of impeachment by majority vote; senate convicts by 2/3 vote; removal requires both.
What does prez have immunity?
Absolute immunity from civil damages for any actions arguably w/in official responsibilities. No immunity from private suits for conduct prior to taking office.
What is exec privilege?
Protects confidentiality of prez communications. May yield if outweighed by other important govt interests.
What does the 10A do?
Powers not granted to US or prohibited to states are reserved to states or people i.e. general police powers are reserved to states.
What is the anti-commandeering principal?
Congress cannot compel states to enact or administer federal programs.
What is the Supremacy Clause?
Art IV. Makes federal law preempt inconsistent state and local laws.
What are the three ways preemption may be implied?
1) Impossible to follow both federal and state law. 2) State law impedes federal law. 3) Extensive federal regulation indicates congressional intent to occupy the field.
What is the dormant CC?
Prohibits state laws that discriminate against or unduly burden interstate commerce. Protects out of staters from interstate commerce discrimination.
What state laws does the privileges and immunities clause of the 4A forbid?
Laws that discriminate against out of state US citizens in important commercial activities and fundamental rights.
What does the privileges or immunities clause of the 14A prohibit?
State laws that interfere w/ interstate travel or petitioning govt. NOT BoR.
If there’s a DCC potential violation, what is the test?
Discriminatory laws are presumptively invalid unless necessary to achieve imp govt purpose and no less discriminatory purpose. Non-discriminatory laws are presumed valid unless burden on IC clearly outweighs non-protectionist benefits.
What are the exceptions that make DCC not apply?
Congressional approval of law and when the state govt acts as a market participant subject to the same restriction.
If there’s a privileges and immunities violation, what’s the test?
Discriminatory laws are presumed invalid unless necessary to achieve important govt purpose and no less discriminatory alternatives. NO EXCEPTION.
How may states tax interstate commerce?
Discriminatory taxes generally invalid. Non-discriminatory taxes general valid if substantial nexus between taxpayer and state AND fair apportionment to business done or benefits received in state.
What is federal immunity for tax purposes?
States may not tax or regulate the federal govt w/o its consent.
What does the privileges or immunities clause of 14A protect?
Right to petition federal government and fundamental right to interstate travel (right to enter/leave a state and equal treatment once become permanent resident of state). BUT no fundamental right to international travel.
Who does 13A apply to?
Applies to state action and private conduct.
What is incorporation?
BoR protections incorporated against states through 14A.
What rights haven’t yet been incorporated?
3A right to have soldiers quartered in home; 5A right to grand jury indictment; 7A right to jury trial in civil cases; 8A right against excessive fines.
What is state action?
State law; state officials acting officially; public function; state involvement.
What is public function?
State action exists when private party performs function done by govt traditionally and exclusively.
What is state involvement?
Fairly significant state involvement in challenged private conduct may count as state action.
