Constitutional Law Flashcards
Hierarchy of Laws
- Constitution
- Statues and treaties – when conflict, whichever enacted more recently trumps
- Executive agreements and executive orders
- State laws
War Rights
- President commander in chief – directs troops
- Congress declares war
- Share power of war concurrently
Federal Judicial Power (Justicability):
What is needed?
• Federal Courts do NOT issue advisory opinions which lack an actual dispute or any legal binding effects.
• Federal Courts do NOT review political questions
• Ripeness - can’t be too early
• Mootness – too late
• Standing:
1. Injury – any harm counts, just not individual objections or general grievances
2. Causation – injury is fairly traceable to defendant
3. Redressability – plaintiff shows favorable court decision can remedy the harm
Ripeness
Too Early
Federal courts may only decide controversies that are ripe for judicial review
• Preenforcement review of laws are not ripe, unless:
1. Substantial hardship in absence of review (the more the better) and
2. Issues in the record are fit for review (the more legal than factual the better)
• i.e.: Drug firms seeks declaration FDA lacked authority to require generic names on all drug labels and ads. Compliance would cost $$$; non-compliance would result in serious criminal and civil liability
3rd party standing:
RULE: No 3rd party standing - EXCEPTIONS:
• Close relationship:
1. Plaintiff injured
2. 3rd party unable or unlikely to sue
3. Plaintiff can adequately represent 3rd party – same interest
• Organizations (on behalf of members):
1. Members have standing
2. Members injury related to purpose of organization
3. Members participation not required (i.e. not seeking individual damages)
• Free Speech Overbreath (party whose speech can be censored on behalf of those whose speech cannot)
1. Substantial overbreath in terms of law’s legitimate to illegitimate sweep
2. Not commercial speech
Mootness
Too Late
Federal courts may on decide live controversies, i.e. plaintiff suffers ongoing injury.
• Live if:
1. For injunctive or declaratory relief challenged law or conduct continues to injure
2. For damages, plaintiff not made whole from injury
• Exceptions: Though injury has passed, not moot if
1. If injury is capable of repetition yet evades review
2. Defendant voluntarily ceases challenged activity, but may restart at will, or
3. In class action, one plaintiff suffers ongoing injury
i.e.: Pregnant woman challenging abortion restriction delivers – not moot; or strip club owner that city sought to close closes, and owner retires – not moot, only obstacle is restarting
Legislative Standing
Legislators may challenge acts that injure them personally, rather than the legislature generally.
i.e.: Legislators challenge tie-breaking vote of Lt. Gov. that nullified contrary votes – standing?
• Yes, loosing side would sue by complaining that individual votes were injured
Political Question Doctrine
Federal courts will NOT decide a political question
i.e. (1) committed by the constitution to political branches of government or incapable of, or (2) inappropriate for, judicial resolution.
EXAMPLES:
1. Guarantee Clause (Art. IV, Sec 4): Challenges to a state’s government as not a republican form of government
2. Foreign affairs: Challenges to President’s conduct of foreign policy and command decisions
3. Impeachment process: Challenge to procedures used by Senate to remove officials
4. Jerry Mandering: Challenges to drawing election districts on partisan basis
5. Election and Qualification of members of Congress
6. Seating of delegates at national political convention
Sovereign Immunity
ARRED:
• ∆ = State, Lawsuit = Federal and state courts (and agencies → can’t hear case in federal court
• EXCEPTIONS:
1. Waiver
2. Π = Other States or Fed
3. Bankruptcy proceedings
4. Clear abrogation by Congress under 14th Amendment powers to prevent discrimination
NOT BARRED:
• ∆ = Suing State official in charge of policy
1. Injunctive relief
2. Money damages from own pocket
• ∆ = local government
1. any lawsuit can be brought
i.e.: (1) You sue your state to enjoin home getting bulldozed, Barred – yes; (2) You sue state director of transportation to enjoin home getting bulldozed, Barred - No
Abstention
- Federal courts may decline to decide a federal constitutional claim that turns on an unsettled question of the state law
- Federal courts generally may not enjoin pending state judicial administrative proceeding.
Supreme Court Review Occurs When:
• Final Judgment Rule by highest state court capable of rending a decision, a federal court of appeals, or (in special statutory situations) a three judge district court.
Independent and Adequate State Grounds
• Exists if outcome would be the same regardless of have federal question decided – whether decided in federal court or state court
Legislative Branch -
Congress’ policing power:
• Congress has NO general policing power to pass laws • EXCEPTION: 1. Federal land 2. Indian reservations 3. DC
**Wrong Answer Choices on MBE:
• Congress has power to legislate for the general welfare
• Congress has the power to act under its police power – Reason: No federal police power except exceptions listed above.
Legislative Branch -
Necessary and Proper Clause
- Never a basis of legislative power alone
- Allows congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution
***Wrong answer choice on MBE:
• Necessary & Proper Clause, by itself, will ALWAYS be wrong b/c it has to have another constitutional power to achieve a result
Legislative Branch -
Necessary and Proper Clause
- Never a basis of legislative power alone
- Allows congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution
***Wrong answer choice on MBE:
• Necessary & Proper Clause, by itself, will ALWAYS be wrong b/c it has to have another constitutional power to achieve a result
Legislative Branch-
Enumerated Powers of Congress
• Citizenship, bankruptcy, federal property, patents and copy right, post offices, coining money, territories and DC, declaring war, raising and supporting armies, providing and maintaining navy
• Taxing and Spending: Congress may tax and spend for to provide for the general welfare (includes public purpose not prohibited by Constitution) - if strings placed on state to receive funds the strings must relate to purpose of spending and not violate Constitution. – norm. right ans. on MBE when fed distributes $
• Commerce power: Congress may regulate commerce with: (1) foreign nations, (2) Indian tribes, (3) among states
• Interstate Commerce:
1. Channels – Highways, waterways, telephone lines, internet
2. Instrumentality – planes, trains, automobiles, person in interstate commerce
3. Substantial effect on IC in aggregate – Growing wheat backyard for home consumption (multiple – loss economic value
• Exception: Noneconomic activity in area that traditionally regulated by states
Legislative Delegation of Power
To Agencies: may broadly delegate legislative power as long as some intelligible principal guides exercise of delegated power
• To President: No line item veto
• To Congress: No legislative veto to void duly enacted laws without bicameralism and presentment
Legislative Branch –
Speech and Debate Clause
Rule: Members of Congress enjoy immunity from civil and criminal liability for legislative acts
• Examples: Speeches on floor, voting, committee reports
• NOT: Bribes, speeches and publications outside of Congress
Executive Branch –
Domestic Powers
- President has power (and duty) to enforce/execute laws.
- Appointment: Ambassadors, federal judges and officers of the US (e.g. Cabinet Secretaries)
• President appoints
• Senate gives advice and consent by majority vote
• NOTE: Inferior officers: Congress may vest appointment power in President, department heads, or judiciary – Congress may NOT directly appoint executive branch officials - Removal: President may remove high level executive officers AT WILL (cabinet secretaries)
• Congress may limit presidential removal of other executive officials for good cause
• Congress may NOT remove executive officials except through the impeachment process - Pardon: Anyone accused or convicted of a federal crime – EXCEPT: Impeachment or civil liability
Executive Branch –
Foreign Powers
• War:
1. Congress alone has power to declare war –
2. President as commander in chief has broad discretion to deploy troops international to protect American lives and property
• Treaties and Executive Agreements:
1. President negotiates Treaties and Executive Agreements
2. Senate: 2/3 votes to approve treaties, no vote executive agreements
3. State Law: Trumps existing and future treaties and executive agreements
4. Federal Law: Trumps existing (not future) treaties and Federal law always trumps an executive agreement
• Impeachment:
1. Congress may impeach president, VP, Fed. Judges, and all over officers of US for treason, bribery, other high crimes, or misdemeanors
Impeachment & Process
- Congress may impeach president, VP, Fed. Judges, and all over officers of US for treason, bribery, other high crimes, or misdemeanors
- Process:
- House of Representatives passes articles of impeachment by majority vote
- Senate convicts by 2/3 vote
- Removal requires both
Executive Powers –
Presidential Immunities and Executive Privileges
- Absolute Immunity: From civil damages for any action within official responsibilities
- No Immunity: For private suits for conduct prior to taking office
• Executive Privileges: Protects confidentiality of presidential communications
NOTE: Privileges may yield if outweighed by other important governmental issues – i.e. evidence in criminal trial
Federalism -
10th Amendment
• Powers not granted to US or prohibited to the states, are reserved to the states or the people
***WRONG ANWSER CHOICE: Federal statute unconstitutional because it’s reserved to the State under the 10th Amendment
General Police Powers
• Reserved to the States
Anti – Commandeering Principal
• Congress cannot compel states to enact or administer federal programs
Preemption
- Express: Congress expressly says so – then Federal preempt state
- Implied Conflict: Impossible to follow both federal and state law – Federal law preempts State law
- Implied Field: Extensive regulation indicates congressional intent to occupy the field – Federal law preempts State law
NOTE: Federal law can be a floor and will not preempt State law if State makes higher floor.
Dormant Commerce Clause
• Who is protected: All out of staters • What protected: Interstate commerce • How Protected: Discriminatory laws (favoring in state over out of state commerce) are invalid unless: 1. Necessary to achieve important governmental purpose (unrelated to economic protectionism), and 2. No less discriminatory alternatives • EXCEPTION: 1. Congressional approval 2. Market participant
***On MBE looking for:
• Impermissible restraint/undue burden by state
• NOT state statute unconstitutional b/c it places a burden on commerce
Privileges and Immunities of Article IV
• Who Protected: Citizens (not aliens or corporations)
• What Protected: Important commercial activities, fundamental rights – prevents economical discrimination
• Discriminatory Laws (favoring in state over out of state citizens) are invalid unless:
1. Necessary to achieve important governmental purpose (unrelated to economic protectionism), and
2. No Less discriminatory alternatives
Deals w/ commerce and civil rights
i.e.:
• Recreational hunting license – okay charge different amount
• Commercial fishing license – economic then strike down UNLESS out of state resident evil preventing
***Privileges and Immunities of 14th Amendment
• Prohibits state laws that interfere with:
- Interstate travel
- Right to petition federal government – write government officials
- NOT BILL OF RIGHTS
• Federal right to interstate travel.
- Right to enter and leave a state
- Equal treatment once become permanent resident of state
- No fundamental right to international travel
**Normally Wrong Answer: Anything with reference to Privileges & Immunities Clause of 14th Amendment → only use with interstate travel
Is the Dormant Commerce Clause and Privileges and Immunities clause of Article IV mutually reinforcing or mutually exclusive?
• Mutually reinforcing
Federalism -
10th Amendment
• Powers not granted to US or prohibited to the states, are reserved to the states or the people
***WRONG ANWSER CHOICE: Federal statute unconstitutional because it’s reserved to the State under the 10th Amendment
General Police Powers
• Reserved to the States
Anti – Commandeering Principal
• Congress cannot compel states to enact or administer federal programs
Preemption
- Express: Congress expressly says so – then Federal preempt state
- Implied Conflict: Impossible to follow both federal and state law – Federal law preempts State law
- Implied Field: Extensive regulation indicates congressional intent to occupy the field – Federal law preempts State law
NOTE: Federal law can be a floor and will not preempt State law if State makes higher floor.
Dormant Commerce Clause
• Who is protected: All out of staters • What protected: Interstate commerce • How Protected: Discriminatory laws (favoring in state over out of state commerce) are invalid unless: 1. Necessary to achieve important governmental purpose (unrelated to economic protectionism), and 2. No less discriminatory alternatives • EXCEPTION: 1. Congressional approval 2. Market participant
***On MBE looking for:
• Impermissible restraint/undue burden by state
• NOT state statute unconstitutional b/c it places a burden on commerce
Privileges and Immunities of Article IV
• Who Protected: Citizens (not aliens or corporations)
• What Protected: Important commercial activities, fundamental rights – prevents economical discrimination
• Discriminatory Laws (favoring in state over out of state citizens) are invalid unless:
1. Necessary to achieve important governmental purpose (unrelated to economic protectionism), and
2. No Less discriminatory alternatives
Deals w/ commerce and civil rights
i.e.:
• Recreational hunting license – okay charge different amount
• Commercial fishing license – economic then strike down UNLESS out of state resident evil preventing
***Privileges and Immunities of 14th Amendment
• Prohibits state laws that interfere with:
- Interstate travel
- Right to petition federal government – write government officials
- NOT BILL OF RIGHTS
• Federal right to interstate travel.
- Right to enter and leave a state
- Equal treatment once become permanent resident of state
- No fundamental right to international travel
**Normally Wrong Answer: Anything with reference to Privileges & Immunities Clause of 14th Amendment → only use with interstate travel
Is the Dormant Commerce Clause and Privileges and Immunities clause of Article IV mutually reinforcing or mutually exclusive?
• Mutually reinforcing
State Taxation –
Discriminatory Taxes
• Generally invalid
State Taxation –
Non - Discriminatory Taxes
• Generally valid if
- Substantial nexus between tax payer and state AND
- Fair apportionment to business done or befits received in state
i. e.: (1) Tax credit for gas sellers of in state ethanol – NOT VALID, discriminatory tax
(2) Sales tax on items sold or shipped from out of state seller – NOT VALID
(3) Gross receipts tax applied to 25% of gross receipts of multistate business with 25% in state sales – VALID
Full Faith and Credit
A decision in one state must be given full faith and credit in another state if 3 conditions are met:
- state one had jurisdiction
- state one judgement was on the merits of the case
- state one judgement was final
Property Clause of Article IV, Section 3 of the Federal Constitution
Gives Congress the power to make all needful rules and regulations respecting the territory or other property belonging to the US. This power permits Congress to acquire and dispose of all kinds of property, and to protect its property with a law that prohibits the taking of natural minerals from the Federal Land.
Federal Property Power:
Extends to all areas controlled by federal governmental:
• Military bases and military equipment
• Federal building/federal enclaves
• Federal national parks – if Federal government was to ban hunting – they can
• Federal prison
• Washington DC
Can Government aid private schools?
Yes - Government may aid private schools as long as such aid does not run afoul of the Constitution (e.g., does not support ethnic, racial, or religious discrimination.)
