Constitutional Law

Question 1

Ripeness

Answer 1

Plaintiff is not entitled to review of a statute or regulation before enforcement, unless plaintiff will suffer some harm or immediate threat of harm.

Question 2

Abstention

Answer 2

A federal court will abstain from resolving a constitutional claim when based on an unsettled question of state law.

Question 3

Mootness

Answer 3

A real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot, unless: (1) the controversy is capable of repetition yet evading review; (2) defendant voluntary ceases his actions but is free to resume at any time; or (2) in a class action, as long as one member of the class has an ongoing injury.

Question 4

Political Question

Answer 4

Courts will not hear issues constitutionally committed to another branch of government or inherently incapable of judicial resolution.

Question 5

Standing

Answer 5

Courts will not hear a care unless the party bringing the suit has standing. To have standing, a litigant must have a concrete stake in the outcome of the controversy. A litigant will have a concrete stake if the litigant can show: (1) that it has suffered an injury in fact; (2) that conduct complained of is the cause of the injury; and (3) the injury can be remedied by a decision in the litigant’s favor (“redressibility”). (Notably, the injury must be specific and more than theoretical. However, the injury does not need to be economic.)

Question 6

Organization Standing

Answer 6

An organization will have standing to challenge government action that causes injury to its members if the organization can show: (1) an injury to the individual members that would give the individuals a right to sue on their own behalf; (2) the injury is germane to the organization’s purpose; and (3) neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.

Question 7

Eleventh Amendment (Sovereign Immunity)

Answer 7

The 11th Amendment prohibits federal courts from hearing private party’s claims against state government unless the private party sues a state officer, the state consents, or Congress removes immunity. However, actions against local government or state officers for injunctive relief are not barred.

Question 8

Executive Powers (Domestic Power / Youngstown)

Answer 8

(1) If the President acts with express or implied Congressional authority, his actions are likely valid (maximum authority); (2) If the President acts where Congress is silent, his action will likely be upheld unless it usurps the power of another branch (“zone of twilight”); and (3) If the President acts against express Congressional will, he has little authority (“lowest ebb” of authority).

Question 9

Executive Privilege and Immunity

Answer 9

The President has the privilege to keep certain communications secret, particularly regarding national security, but not in criminal proceedings where the prosecution shows need. The President has absolute immunity from civil damages for acts while in office.

Question 10

Necessary and Proper Clause

Answer 10

Congress may take any action not prohibited by the Constitution to enable execution of any power granted to any branch of the federal government.

Question 11

Commerce Clause

Answer 11

Congress may regulate the (1) channels of interstate commerce; (2) instrumentalities of interstate commerce and persons and things in interstate commerce; and (3) economic activities that have a substantial effect on interstate commerce.

Question 12

Commerce Clause (Intrastate Activity)

Answer 12

If Congress attempts to regulate intrastate activity, the court will uphold the regulation if (1) it involves economic or commercial activity; and (2) Congress can conceive of a rational basis that it has a cumulative effect on intrastate commerce.

Question 13

Commerce Clause (Non-Economic Activity)

Answer 13

Congress cannot regulate non-economic activity unless Congress can factually show that it has a substantial economic effect on interstate commerce. In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.

Question 14

Tax and Spending Power

Answer 14

Congress may tax and spend for the general welfare and may enact any tax to raise revenue for the general welfare.

Question 15

Limitations on Power by the Tenth Amendment

Answer 15

All powers not granted to the United States, nor prohibited to the states, are reserved to the states or to the people. Accordingly, Congress cannot commandeer states by compelling state regulatory or legislative action. But Congress can induce state government action by putting strings on grants, unless such inducement is unduly coercive. Also, Congress may prohibit harmful commercial activity by state governments.

Question 16

Preemption

Answer 16

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.

Question 17

Express Preemption

Answer 17

If a federal statute expressly says that federal law is exclusive in an area, state and local laws are preempted.

Question 18

Implied Preemption

Answer 18

If federal and state laws are mutually exclusive, federal state law preempts state law.

Question 19

Dormant Commerce Clause (DCC)

Answer 19

Even when no federal law is on point, state laws that discriminate against interstate commerce will usually be held to violate the negative implications of the Commerce Clause (also called the Dormant Commerce Clause), unless the state can prove that the laws are necessary to achieve an important state interest. States laws that do not discriminate against interstate commerce will be upheld unless they unduly burden interstate commerce.

Question 20

Discrimination Against Interstate Commerce (DCC)

Answer 20

Laws designed to protect local businesses against interstate competition, laws requiring local operations, and laws limiting access to state products have been held to discriminate against interstate commerce.

Question 21

Unduly Burdens Interstate Commerce (DDC)

Answer 21

Even if a state law does not discriminate against interstate commerce, it could be found to run afoul of the Commerce Clause is it unduly burdens interstate commerce. In determining whether there is is an undue burden on interstate commerce, the courts will balance the legitimate (i.e., non-discriminatory) state interest against the burden placed on interstate commerce. The determination is made on a case-by-case basis. Courts may consider whether there are less restrictive means to accomplish the state’s goals and whether the state law conflicts with other state laws.

Question 22

Dormant Commerce Clause Exceptions

Answer 22

If the state law discriminates against out-of-state competition, it is invalid unless: (1) the law furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives; (2) the state is a market participant; or (3) the government action involved is the performance of a traditional government function.

Question 23

Privileges and Immunities Clause (Art. IV)

Answer 23

Under Article IV of the US Constitution, state laws that deny out-of-state person privileges and immunities accorded to in-state person violate the provision (1) if the state law discriminates against out-of-state persons with regard to civil liberties or important economic activities, unless the government can show nonresidents are at least part of the problem the government is attempting to solve and there are no less restrictive means; or (2) if the law does not discriminate, Art. IV does not apply.

Question 24

Privileges and Immunities Clause (14th Amendment)

Answer 24

The 14th Amendment prohibits states from denying their own citizens right of national citizenship–used recently to prohibit discrimination against new residents for violating the right to travel.

Question 25

State Action

Answer 25

Constitution only applies to government action, not private conduct, unless (1) Congress, by statute, applies constitutional norms to private conduct (i.e., 13th Amendment, section 2 and Commerce Clause); (2) if a private entity is performing a task traditionally and exclusively performed by the government; or (3) if the government affirmatively authorizes, encourages, or facilities unconstitutional activity.