Constitutional Law Flashcards
Federal Judicial Power: Requirement for Case and Controversy
Art. III defines powers of courts
There is a requirement cases and controversies
Federal Judicial Power: Standing - Definition & Requirements
Standing is the issue of whether the plaintiff is the property party to bring a matter to the court for adjudication
Four requirements:
(1) Injury
(2) Causation and redressability
(3) No third party standing
(4) No generalized standing
Federal Judicial Power: Standing - Injury
Injury: P must allege and prove that he (a) has been injured or (b) imminently will be injured.
(i) Plaintiffs only may assert injuries that they personally have suffered
(ii) Plaintiffs seeking injunctive relief or declaratory relief must show likelihood of future harm
Federal Judicial Power: Standing - Causation and Redressability
Plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury
Federal Judicial Power: Standing - Third Party Standing
General rule: no third party standing – plaintiff cannot assert claims of others, of third parties, who are not before the court
Exceptions:
(1) Third party standing is allowed is there is a close relationship between the plaintiff and the third party (e.g., doctor-patient)
(2) Third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights
(3) An organization may sure for its members, if (a) the members would have standing to sue, (b) the interests are germane to the organization’s purpose, and (c) neither the claim nor relief requires participation of individual members
Federal Judicial Power: Standing - Generalized Grievances
No generalized grievances: Plaintiff must not be suing solely “as a citizen” or “as a taxpayer” interested in having the government follow the law
Exception: taxpayers have standing to challenge government expenditures pursuant to federal (or state and local) statutes as violating the Establishment Clause
Federal Judicial Power: Ripeness
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation
Factors:
(a) Hardship that plaintiff will suffer without pre-enforcement review
(b) Fitness of the issues and the record for judicial review
Federal Judicial Power: Mootness
If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot
Exceptions:
(1) Wrong capable of repetition but evading review (same plaintiff must be able to suffer the harm again)
(2) Voluntary cessation: if defendant voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot
(3) Class action suits will not be dismissed as moot, so long as some member of the class still has the injury
Federal Judicial Power: Political Question Doctrine
Political question doctrine refers to constitutional violations that the federal courts will not adjudicate
Following four are dismissed as non-justiciable political question:
(1) The republican form of government clause (e.g., initiative process challenged under this clause)
(2) Challenges to President’s conduct of foreign policy
(3) Challenges to impeachment and removal process
(4) Challenges to partisan gerrymandering
Federal Judicial Power: Supreme Court Review
(1) Virtually all cases come to the Supreme Court by writ of certiorari
(a) All cases from state courts
(b) All cases from US courts of appeals
(2) Appeals exist for decisions of three-judge federal district courts (statute will require; SCOTUS obligated to take)
(3) Supreme court has original and exclusive jurisdiction for suits between state governments
(4) Final judgment: generally, S. Ct. may hear cases only after there has been a final judgment of the highest state court, a US Court of Appeals, or a three-judge federal district court
(5) For review of a state court decision, there must not be an independent and adequate state law ground of decision. If a state court decision rests on two grounds, one state and one federal, if S. Ct.’s reversal of the federal law ground will not change the result in the case, the S. Ct. cannot hear it.
Federal Judicial Power: Lower Federal Court Review - Sovereign Immunity
Federal courts (and state courts) cannot hear suits against state governments
(1) Principle of sovereign immunity: (a) 11th A bars suits against states in federal court; (b) Sovereign immunity bars suits against states in state courts or federal agencies
(2) Exceptions to Sovereign Immunity:
(a) Waiver is permitted: waiver must be explicit (no implied or constructive waiver)
(b) Abrogation: States may be sued pursuant to federal laws adopted under Section 5 of the Fourteenth Amendment; Congress cannot authorize suits against states under other constitutional provisions
(c) Federal government may sue state governments
(d) Bankruptcy proceedings
(3) Suits against state officers are allowed
(a) State officers MAY be sued for injunctive relief
(b) State officers MAY be sued for money damages to be paid out of their own pockets
(c) State officers MAY NOT be sued if it is the state treasury that will be paying retroactive damages
(4) Abstention: federal courts may not enjoin pending state court proceedings
Federal Legislative Power: Congress’s Authority to Act
(1) Must be express or implied Congressional power – no general, federal police power, except: DC, military, Indian reservation, federal lands and territories
(2) Necessary and Proper Clause
(3) Taxing/Spending Power: Congress may tax and spend for the general welfare
(4) Commerce Power: with foreign nations, among states, with Indian nations
(a) Congress may regulate the CHANNELS of interstate commerce
(b) Congress may regulate the INSTRUMENTALITIES of interstate commerce and persons or things in interstate commerce
(c) Congress may regulate ECONOMIC activities that have a SUBSTANTIAL effect on interstate commerce (if non-economic activity, substantial effect cannot be based on cumulative impact)
(5) 10th Amendment: limit on Congressional powers – all powers not granted to US nor prohibited to the states are reserved to the states or the people
(a) Congress cannot compel state regulatory or legislative action (but, can induce state govt action by putting string on grants so long as they are expressly stated, related to the purpose of the spending program, and not unduly coercive)
(b) Congress may prohibit harmful commercial activity by state governments
(6) Congress’s power under section 5 of the 15th Amendment: 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
Federal Legislative Power: Delegation of Powers
(1) No limit exists on Congress’s ability to delegate legislative power
(2) Legislative vetoes and line-item vetoes are unconstitutional – for Congress to act, there always must be bicameralism and presentment; President must sign or veto bill in its entirety
(3) Congress may not delegate executive power to itself or its officers
Federal Executive Power: Foreign Powers -Treaties
Treaties are agreements between the US and a foreign country that are negotiated by the President and are effective when ratified by the Senate
(a) Treaties prevail over conflicting state laws
(b) If a treaty conflicts with a federal statute, the one adopted last in time (i.e. most recently) controls
(c) If a treaty conflicts with the US Constitution, it is invalid
Federal Executive Power: Foreign Powers -Executive Agreements
An executive agreement is 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 senate approval required)
(a) Executive agreements can be used for any purpose
(b) Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the constitution
Federal Executive Power: Foreign Powers -Limits on Recognition Power
It is unconstitutional for Congress by statute to designate the capitol of a foreign country
Federal Executive Power: Foreign Powers -Commander-in-Chief
The President has has broad powers as Commander-in-Chief to Use American troops in foreign countries
Federal Executive Power: Domestic Powers - Appointment and Removal Power
(1) Appointment Power:
(a) President appoints ambassadors, federal judges, and officers of the US
(b) Congress may vest the appointment of inferior officers (not defined, but satisfied if can be fired by another officer) in the President, the heads of departments, or the lower federal courts
(c) Congress may not give itself or its officers the appointment power
(d) President may not make recess appointments during intrasession recesses that are less than 10 days
(2) Removal Power: Unless removal is limited by statute, the President may fire any executive branch office
(a) For Congress to limit removal, must be an office where independence from the President is desirable, AND (b) Congress cannot prohibit removal, it can only limit removal where there is good case
Federal Executive Power: Domestic Powers - Impeachment and Removal
Present, Vice President, federal judges, and officers of the US can be impeached and removed from office for treason, bribery, or for high crimes and misdemeanors
Impeachment does not remove a person from office
Impeachment by the House of Representatives requires a majority vote; conviction in the Senate requires 2/3 vote
Federal Executive Power: Domestic Powers - Presidential Immunity
President has absolute immunity to civil suits for money damages for actions while in office
President does not have immunity for actions that occurred prior to taking office
Federal Executive Power: Domestic Powers - Executive Privilege
President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests
Federal Executive Power: Domestic Powers - Pardon Power
President has the power to pardon those accused or convicted of federal crimes
Cannot pardon state conviction
Can only pardon criminal liability, not civil liability
Federalism: Preemption
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.
Express preemption: if federal law is exclusive in an area, state law is preempted
Implied preemption:
(a) If federal and state laws are mutually exclusive, federal law preempts state law
(b) If state law impedes the achievement of a federal objective, federal law preempts state law
(c) If Congress evidences a clear intent to preempt state law, federal law preempts state law
States may not tax or regulate federal government activity (inter-governmental immunity)
Federalism: Dormant Commerce Clause
Negative implications of commerce clause - state/local law is unconstitutional if it places and undue burden on interstate commerce (weigh burdens on interstate commerce and benefits)
If the law discriminates against OUT OF STATERS and burdens interstate commerce, it violates the dormant commerce clause UNLESS it is necessary to achieve an important government purpose and there is no less stringent alternative
Exceptions:
(a) Congressional approval
(b) Market participant: a state or local government may prefer its own citizens in receiving benefits from governmental programs or in dealing with government-owned business
Federalism: Privileges AND Immunities Clause of Art. IV
No state may deny citizens of ANOTHER state the privileges or immunities of its state
Corporations and aliens cannot use the privileges and immunities clause
If the law does NOT discriminate, Privileges and Immunities does NOT apply
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 Art. IV, unless it is necessary to achieve an important government purpose
Federalism: Privileges OR Immunities Clause of 14th A
Basically means that citizens can travel freely within the US
Federalism: State Taxation of Interstate Commerce
States may not use their tax systems to help in-state businesses
A state may only tax activities if there is a substantial nexus to the state
State taxation of interstate businesses must be fairly appointed
Federalism: Full Faith and Credit
Courts in one state must give full faith and credit to judgments of courts in another state, so long as:
(1) The court that rendered the judgment had jurisdiction over the parties and the subject matter
(2) The judgment was on the merits and
(3) The judgment is final
Individual Liberties: Government Action Requirement & Application to Private Parties
Constitution only applies to government action, but Congress, by statute, may apply constitutional norms to private conduct
13th A CAN be used to prohibit private race discrimination (the one amendment directed at private individuals)
Commerce power can be used to apply constitutional norms to private conduct
Congress cannot use section 5 of the 14th Amendment to regulate private behavior
Individual Liberties: Government Action Requirement - Exceptions
There are situations where private conduct must comply with the Constitution
(1) Public function exception: Constitution applies if a private entity is performing a task traditionally, exclusively done by the government
(2) Entanglement exception: Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activities; examples:
(a) Courts cannot enforce racially restrictive covenants
(b) There is state action when the government leases premises to a restaurant that racially discriminates
(c) There is state action when a state provides books to schools that racially discriminate
(d) There is state when a private entity regulates interscholastic sports within a state
(e) There is NO state action when a a private school that is over 99% funded by the government fires a teacher because of her speech (government subsidy is insufficient; govt not encouraging the speech)
(f) There is NO state action when NCAA orders the suspension of a basketball coach at a state university (NCAA is a private institution)
(g) There is NO state action when a private club with a liquor license from the state racially discriminates
Individual Liberties: Application of Bill of Rights
Bill of Rights applies directly only to the federal government
It is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment, except: (a) 3rd A right to not have a soldier quartered in a person’s home, (b) 5th A right to grand jury indictment in civil cases, (c) 7th A right to jury trial in civil cases, and (d) 8th A right against excessive fines
Individual Liberties: Levels of Scrutiny
(1) RATIONAL Basis Test: A law is upheld if it is RATIONALLY related to a LEGITIMATE government purpose
(a) Challenger has the burden of proof
(2) INTERMEDIATE Scrutiny Test: A law is upheld if it is SUBSTANTIALLY related to an IMPORTANT government interest
(a) Government has burden of proof
(b) Means must be narrowly tailored, but does not need to meet least restrictive test
(c) Court looks at government’s actual purpose
(3) STRICT Scrutiny: A law is upheld if it is NECESSARY to achieve a COMPELLING government interest
(a) Government has burden of proof
(b) Means must be proven necessary, i.e. no alternative, less restrictive means
(c) Court looks at government’s actual purpose
Individual Liberties: Procedural Due Process - Definitions
Definition: has the government provided adequate procedures when taking away life, liberty, or property – notice
If the government deprives a person of life, liberty, or property, government must provide procedural due process; adequate procedures are determined via balancing test
(1) Deprivation of liberty: occurs if there is a loss of a significant freedom provided by the Constitution or a statute
(a) Usually involves violation of Constitutional right
(b) Other examples: need notice and hearing before institutionalizing an adult (except in emergency), only need neutral fact-finder screening when parent institutionalizes kid, harm to reputation insufficient, prisoners rarely have liberty interests
(2) Deprivation of property: occurs if there is an entitlement and that entitlement is not fulfilled
(3) Government action:
(a) Negligence is not sufficient for deprivation of due process
(b) Generally, must be intentional government action or at least reckless action for liability
(c) In emergency situations, government liable under due process only for conduct that “shocks the conscience”
(d) Generally, government failure to protect people from privately inflicted harms does not deny due process
