Constitutional Law Flashcards
What are the four justice ability requirements?
Standing, ripeness, mootness, political question
What are the 3 requirements to establish standing?
- Injury
- Causation
- Redressability
To meet the injury requirement for standing, what must the laintiff allege and prove?
That plaintiff has been personally injured or imminently will be injured personally. If seeking injunctive or declaratory relief, must show a likelihood of future harm.
What must the plaintiff allege and prove to meet the causation and redressability requirement?
- Defendant cause the injury
- Favorable court decision is likely to remedy injury.
No advisory opinion.
What are the three exceptions to 3rd party standing?
- Close relationship between plaintiff in the injured third party.
- Injured third party is unlikely to be able to assert his or her own rights.
- Organization on behalf of members if
(a) members would have standing,
(b) members interests germane to organization’s purpose
(c) neither the claim nor relief requires participation of individual members.
Does a person by virtue of being a citizen or taxpayer have standing?
No, that’s a generalized grievance unless challenging governments expenditures pursuant to Federal, state, or local statutes as violating the establishment clause.
What are the requirements for ripeness?
Federal Court may not grant a declaratory judgment unless of a statute or regulation unless Plaintiff will suffer some hardship or threat of hardship without the review
What are the three exceptions to the application of mootness?
Events after the filing of a lawsuit will end plaintiffs injury and be dismissed as moot unless one of the following apply:
- The wrong is capable of repetition but the fading review
- Defendant voluntarily stops offending conduct but may resume at any time
- Class action suits as long as one member of class has ongoing injury, even though named plaintiffs injury is done
What are four examples of the political question doctrine?
- Article 4 “ republican form of government” clause challenge
- Challenges to the president’s conduct of foreign policy
- Challenges two of the impeachment and removal process
- challenges to partisan gerrymandering
When may the Supreme Court hear cases?
On certiorari: final judgment of highest state court or the U.S. Court of appeals where a state law, federal statute, treaty, or state statute violates federal law or is unconstitutional.
On appeal: three judge Federal District court
Original and exclusive jurisdiction for suits between state governments
What if a state court decision rests on state law and Federal law grounds, can the supreme court hear it?
No. There must not be an independent and adequate state law ground of decision.
What source of law generally prevents courts from hearing suits against states? What exceptions apply to subject states to suits?
The 11th amendment bars suits against states in Federal Court. Sovereign immunity bars suits against states in state courts or Federal agencies.
- Explicit waiver
- Federal laws adopted under section five of the 14th amendment.
- Federal government may sue state governments
- Bankruptcy proceedings
When may state officers be sued?
- Injunctive relief
2. Money damages to be paid out of their own pockets, but not from state Treasuries.
If asked whether Congress had authority to enact a law, what are the 8 main constitutional sources to consider that could justify Congress’ exercise of power in this instance?
"Necessary commerce tax 5 of 14" 1. Necessary and proper clause 2. Tax and spend for general welfare 3. Commerce Power 4. Section five of the 14th amendment MILD: 5. Military 6. Indian reservations 7. Land federally owned 8. District of Columbia
What types of laws is Congress able to pass under its Commerce Power?
Congress may regulate:
- Channels of interstate commerce, such as highways
- Instrumentalities of interstate commerce, persons or things in interstate commerce, such as trucks telephones Internet
- Economic activities that have a substantial effect on interstate commerce, but cumulative impact is no basis for legislation if the area is not an economic activity.
What limit is placed upon Congress’ Power under section five of the 14th amendment to legislate?
Congress may not create new rights or expand the scope of rights; may act only to prevent or remedy violations of rights recognized by courts. Such laws must be”proportionate” and “congruent” two remedying constitutional violations.
Example: religious freedom restoration act was unconstitutional because Congress was creating new rights rather than protecting existing rights
What are legislative and line item vetoes?
A legislative veto is an attempt to overturn an executive action without bicameralism and presentment.
A line item veto is a presidential attempt to strike individual provisions of the law.
What limits exist on congress’s ability to delegate legislative power?
Since 1937 no delegation of legislative power has been found unconstitutional. However Congress may not delegate executive power to itself or its officers.
What are the three treaty conflict rules?
- Treaties prevail over conflicting state laws
- If the treaty conflicts with a Federal statute, the one adopted last in time controls.
- That if a treaty conflicts that the U.S. constitution it is invalid
What are the three main differences between an executive agreement and a treaty?
- No senate approval is required for an executive agreement, only signature by president and head of foreign country.
- Federal statute controls over executive agreement but whichever was last in time controls with treaty.
Which officials may be appointed under the president’s appointment power?
Ambassadors, Federal judges, and “officers”
What is an “inferior officer” (as opposed to a” officer”) and who appoints them?
An “inferior officer” can be fired by an “officer.” Congress may vest the appointment of inferior officers in the president, the heads of departments, or the lower Federal courts (but not itself).
Can Congress prohibit the president’s removal power?
No. It can only limit the removal to where there is a good cause and only where independence from the president is desirable.
Can the vice president, Federal judges, and officers of the United States be removed?
No, they must be impeached first for treason, bribery, or high crimes and misdemeanors.
Does impeachment remove a person from office?
No impeachment requires a majority vote by the house of representatives and conviction in the senate by 2/3 vote
What is the extent of a presidential immunity?
Absolute immunity to civil suits for money damages for any actions while in office but not for actions that occur prior to taking office that
What is the extent of the president’s executive privilege?
Presidential papers and conversations unless outweighed by important gov’t interests
What is the extent of the president’s power to pardon?
Can pardon those accused or convicted of Federal crimes but not state criminal crimes or any (Federal or state) civil liability or impeachment.
What is the source of preemption?
The supremacy clause of article six and provides that the constitution, along with laws and treaties made pursuant to it, are the supreme law of the land.
When is there express preemption?
When the Federal law explicitly mentions that it is the “exclusive” law.
What are the three types of implied preemption?
- Federal and state laws are mutually exclusive.
- State law prevents achievement of Federal objective. For example, Florida law that barred NLRB claimants from filing Florida unemployment
- Field preemption, in which a Federal statute or regulation occupies the entire field, even if the state or local regulation is nonconflicting, such as immigration law.
Can states tax the Federal gov’t?
Not unless it’s a nondiscriminatory, indirect tax that doesn’t unreasonably burden the Federal government.
What limits are placed upon Congress is ability to make laws?
There must be expressed or implied congressional power. The 10th amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
What is the difference between the commerce clause and the dormant commerce clause?
The commerce clause limits Congress; the dormant commerce clause limits states’ ability to burden interstate commerce.
What is the difference between the privileges and immunities cause of article 4 and the 14th amendment?
The privileges and immunities clause of article 4 prohibits states from denying to residents of other states the same rights that it gives to its own residents.
The privileges and immunities clause of the 14th amendment concerns the right to travel only.
In determining whether the dormant commerce clause or the privileges and immunities clause of article 4 applies to a state action at issue, what is the first question to answer?
Does the state law discriminate against out of staters? If so, the privileges and immunities clause may apply. Otherwise, the dormant commerce clause may apply.
If a state law does not discriminate, when does it violate the dormant commerce clause?
If the burdens exceed the benefits.
For example, an Illinois law that required trucks to have curved mud guards while every other state allowed straight mud cards, wasn’t discriminating against out of state residents, but violated the dormant commerce clause because the law added a significant burden and no significant benefit was achieved.
When does a law that discriminates against out of state residents also violate the dormant commerce clause?
If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve in important government purpose.
When analyzing a dormant commerce clause issue, what burden must the state meet to show that the law or state government action was necessary to achieve D important government purpose?
What exceptions apply?
No less discriminating could achieve the purpose.
- Congress gives its approval of the state action
- A state or local government they prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses (market participant exception). For example a state owned cement factory can charge more to out of state customers than in state customers. For example University of California can charge more to out of state students.
When does a discriminatory state law violate the privileges and immunities clause?
Unless it is (a) necessary (no less discriminatory alternative) to achieve (b) an important government purpose, if it discriminates against out of state residents with regard to
1) their ability to earn a livelihood or
2) their civil rights.
Can corporations and aliens use the privileges and immunities clause?
No, only individuals. But corporations and aliens can use the dormant commerce clause.
Can congressional approval of the state action and the market participant exception be applied to a state action that otherwise violates the privileges and immunities clause?
No.
When can a state tax interstate commerce?
States cannot use their tax system to help in-state businesses but can tax out of state residents if:
1) there is substantial nexus to the state; and
2) the tax is fairly apportioned to the state.
What does the full faith and credit clause provide and when does it apply?
Courts in one state must enforce judgments of courts of another state so long as:
1) the court that rendered the judgment had jurisdiction over the parties and subject matter;
2) the judgment was on the merits; and
3) the judgment was final.
Can Congress prohibit racially discriminatory action by a private citizen under the 13th amendment?
Yes, the 13th amendment prohibits slavery, involuntary servitude, and the badges of slavery by both governments and private citizens.
What causes certain provisions of the bill of rights to apply to the states and what are those provisions?
The 14th amendment to process clause applies all provisions of the bill of rights (first 10 amendments) to the states except the fifth amendment’s prohibition of criminal trials without a grand jury indictment and the seventh amendment’s right to a jury trial in civil cases.
Is the 14th amendment a basis to prohibit private action? What about the commerce clause?
No. The 14th amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law.
The commerce clause is a basis to prohibit private racial discrimination because almost any activity taking cumulatively might have a substantial effect on interstate commerce.
Aside from the 13th amendment and the commerce clause as a source for regulating private behavior, under what two circumstances does the constitution apply to private conduct?
- Public function: Activities that are so traditionally the exclusive prerogative of the state are state action matter who performs them.
- Entanglement: Whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
