Constitutional Law Flashcards
What are the requirements for cases and controversies, aka the four justiciability doctrines?
- Standing
- Ripeness
- Mootness
- Political question doctrine
Note: federal courts cannot render advisory opinions. As such, they will not hear collusive actions (interested parties on the same side). State courts, however, can.
What are the four requirements of standing?
- Injury (has been/imminently will be)
- Causation and redressability (D caused, and favorable court decision could remedy)
- No third party standing (subject to exceptions)
- No generalized grievances (can’t just be taxpayer or citizen)
Describe the injury requirement within standing
P can only assert injuries they personally have suffered.
Describe the injury requirement for plaintiffs seeking injunctive or declaratory relief
Must show likelihood of future personal harm
In choice between plaintiffs with potential standing, which one will probably have the best standing?
If more than one where P personally suffered, look for the one with P suffering economic loss (dollars and cents)
What is required to show causation/redressability requirement under standing?
P must allege and prove that D caused injury such that favorable court decision could remedy injury
What are third party standing exceptions (for standing)
Usually, P cannot assert the claims of others.
Exceptions:
1. Sufficiently close relationship between P and 3d party (such that P can be trusted to adequately represent P interests)
Ex. Doctor-patient
Not noncustodial dad
- If injured third party is unlikely to be able to assert their own rights
(can’t come to court) - Associational standing. An organization may sue for its members if:
(a) individual members would have standing,
(b) interests are germane to organizational purpose, AND
(c) neither the claim nor relief requested requires participation of individual members
What is the narrow exception to the prohibition against generalized grievances, for purposes of standing?
Very narrow exception is that taxpayers have standing to challenge government EXPENDITURES pursuant to federal (or state and local) STATUTES as violating the Establishment Clause of the 1st Amendment.
What won’t fit:
- Government grants of property
- Expenditures from executive action
- Tax credits benefiting religion
What does ripeness requirement mean for standing
Question of whether federal court may grant pre-enforcement review of the statute or regulation?
If there is a hardship that will be suffered without pre-enforcement review, then ripeness.
Court looks at fitness of the issues and the record for judicial review (would there be a better reason to wait until prosecution?)
Ex. If a new law was passed but won’t go into effect/create harms for two years, probably premature.
What is the mootness requirement for standing?
If events after the filing of the lawsuit end the plaintiff’s injury, then the case must be dismissed as moot.
Live and ongoing injury.
What are the exceptions to the mootness requirement for standing?
- Wrong capable of repetition but evading review (Roe)
- Voluntary cessation (D voluntarily halts but is legally free to resume at any time)
- Class action suits (if named plaintiff case becomes moot, OK as long as another member has ongoing interest)
What is the political question doctrine, and what are four major areas that are non-justiciable?
Allegations of constitutional violations that federal courts will not adjudicate, left to elected branches.
Non-justiciable:
- “Republican form of government clause”
- Challenges to presidential conduct in foreign policy
- Challenges to impeachment and removal process
- Challenges to partisan gerrymandering
What is the final judgment rule?
SCOTUS generally may only hear cases after there has been a final judgment of the highest state court/US Ct. App., or 3-judge federal district court.
What if there are two grounds in an opinion, one state and one federal. OK for SCOTUS to take.
Not if there is an independent and adequate state law ground of the decision.
Ex. if the state court holds the law invalid on state, rather than federal, constitutional grounds
Note: SCOTUS will refuse to hear only if the ground is ADEQUATE to support the decision. The court will hear it if review may have an outcome on the case regardless of the state court’s decision on the state constitutional issue.
SCOTUS will refuse
What does the 11th Amdt say?
Bars suits against states in federal courts
What is sovereign immunity?
Bars suits against state governments in state courts or federal agencies.
What are exceptions to sovereign immunity, such that states may be sued?
- Waiver explicit/expressly permitted by state
- If claim is under 14th Amdt, Sec 5 - Congress strips state of its 11th Amdt immunity (Enabling Clause): when it has been found that there is a violation of civil right or fundamental right
- Fed govt is suing state govt
- Bankruptcy proceedings
- Sue a state official
- State sue another state
When may a suit be brought against state officers?
- For injunctive relief
- For money damages out of state officers’ own pockets (personal liability
Note: state officers may not be sued if state treasury will be paying retroactive damages
What is the doctrine of abstention, and how does it affect sovereign immunity?
Federal court may not enjoin a pending state court proceeding.
Exception: A federal court will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith, e.g. merely to harass the defendant.
What are some exceptions to the general rule that there is no general federal police power?
General rule: Congress does not have the power to LEGISLATE for the general welfare; there is no federal police power (they can only spend for the general welfare).
MILD. Military Indian Federal lands and territories DC
What does the necessary and proper clause provide
Congress may use any means not prohibited by the constitution to carry out the constitution.
Ex. A tax, even though enacted for a regulatory rather than a revenue-raising purpose, can be upheld as a “necessary and proper” exercise of Congress’s power to tax under Article I, Section 8, Clause 1. This will be especially true if the revenues derived from the measure are used to cover the expenses associated with the federal regulatory scheme.
What is the taxing/spending power?
Congress may tax and spend for the general welfare, by creating a taxing or spending program
What is the commerce clause?
- Congress may regulate channels of interstate commerce (places where commerce occurs)
- Congress may regulate the instrumentalities of interstate commerce and persons/things in interstate commerce (things that facilitate commerce - internet and trucks)
- Congress may regulate economic activities that have a substantial effect on interstate commerce
Ex. transportation, the internet, transmissions across state lines (gas, electricity)
Note: could be interpreted as extending to commerce with outer space should the occasion arise.
Note: the Commerce power does not override independent constitutional restrictions. It cannot be used to abrogate freedom of speech or discriminate in favor of religious groups. An exercise of the commerce power generally is subject to all limitations placed on government by the Constitution.
Note: Congress also has Admiralty Power, power over all navigable waters.
Note: Congress can delegate its powers to the state (consenting to non-uniform reg by states)
What activities will be deemed to have a “substantial effect” on interstate commerce, for the purposes of the commerce clause?
In areas of non-economic activity, substantial effect cannot be based on cumulative impact. Need a factual finding by Congress (stricter than rational basis)
However, if there is economic impact, can look cumulatively. Then, you only need rational basis.
Five justices have said that Congress cannot regulate inactivity (e.g. individual mandate - those who don’t act to get care).
What does the 10th Amdt do to congressional powers?
It’s a limit on congressional federal powers. It says that all powers that aren’t granted to the US, nor prohibited to the states, are reserved to the states or people. Language like “integral government function.” You can’t have federal gov’t commandeering state powers.
Congress cannot compel state regulatory or legislative activity.
Note: They can put strings on funding, so long as they
(1) are clearly stated,
(2) relate to the purpose of the spending program and
(3) are not unduly coercive
Congress MAY prohibit harmful commercial activity by state governments
Note: 10th Amdt. is NO LONGER USED by the courts as a limit on congressional action that applies to both the public and private sectors. That is now enforced by the political process. It’s a very weak limitation.
What does the 14th Amdt Sec 5 hold?
Congress may not create new rights or expand the scope of rights. They can only prevent or remedy violations of rights recognized by courts, and those must be “proportionate” and “congruent” to remedying rights.
What are the limitations on Congress’ ability to delegate legislative power?
Technically under non-delegation clause, but has never been declared unlawful.
What are legislative and line-item vetoes, and what are their rules?
Legislative vetoes and line-item vetoes are unconstitutional.
For congress to act, need bicameralism (H/S) and presentment (POTUS to sign or veto). POTUS must then sign or veto a bill in its entirety.
Line item veto - president attempts to veto part of the bill while signing onto the rest of the law
What’s the deal with congress using executive power?
Congress may not delegate executive power to itself or its officers
What is the federal executive power over treaties?
Agreements between the US and foreign country that are negotiated by POTUS are effective when ratified by the senate. Note that POTUS doesn’t need congressional approval to terminate a treaty, however.
If a treaty conflicts with a federal statute, last in time controls.
If a treaty conflicts with constitution, it’s invalid.
What are presidential powers re executive agreements?
An executive agreement is an agreement between US and foreign country that is effective when signed by POTUS and the head of the foreign nation.
No senate approval needed. Can be used for any purpose. ANything that can be done by treaty can be done by executive action.
Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the USC.
What is a limit on the federal executive recognition poewr?
Congress cannot statutorily designate the capitol of a foreign country
What are federal executive powers w/r/t sending troops abroad?
President has broad power as Commander-in-Chief to use American troops in foreign countries. This is a broad political power. Never has the president been deemed unconstitutional for using troops abroad.
What is the appointment power, and who holds it?
POTUS holds appointment and removal power.
POTUS appoints ambassadors, federal judges, officers of the US. President can’t make recess appointments during intrasession (within session) recess less than 10 days
Congress
- Congress may vest the appointment of inferior officers in the president, heads of department, or lower federal courts (inferior if can be fired by a senior officer)
- Congress cannot give itself or its officers the appointment power.
What is the removal power, and who holds it?
Unless removal is limited by statute, president may fire any executive branch official.
For Congress to limit removal, it must be an officer where independence from the president is desirable AND Congress cannot prohibit removal (it can limit removal to good cause)
What is impeachment and removal of federal officials?
POTUS, VP, federal judges, officers of US can be impeached and removed from the office for treason, bribery, high crimes and misdemeanors.
Impeachment doesn’t remove someone from office. Impeachment by house requires majority, conviction requires 2/3 (that brings removal).
What are presidential immunities re civil suits during office?
President has absolute immunity to civil suits for money damages for actions that occurred prior to taking office.
However, the president does not have immunity for actions that occurred prior to taking office.
What are the executive privileges re: presidential papers and conversations?
POTUS has that executive privilege, but that privilege yields to other important governmental interests.
What is the presidential pardon power (Art. II, Sec. 2)
President has power to pardon those accused of or convicted of federal crimes. This is an exclusive power, not subject to control by Congress, and includes the power to commute a sentence on any condition the president chooses (so long as the conditions do not offend some other constitutional provision).
Exception: can’t pardon someone impeached by the House of Reps.
Can never pardon as to state criminal or civil liability.
What is preemption, a federalism principle?
Supremacy Clause of Article VI provides that USC, laws and treaties made pursuant to it, are the supreme law of the land. Thus, between federal and state law, state law will be deemed preempted and fed law wins out.
SC prevents state control over the federal govt even if they interfere with integral state gov’t functions.
Field preemption occurs when Congress shows an intent to occupy an entire field, thus precluding state regulation (may be express or implied).
Note: if the laws regulate the same subject matter, but have different purposes, there won’t necessarily be preemption. And states can pass stricter regulations than the federal scheme.
What is express preemption?
If federal statute explicitly says that federal law is exclusive in a field, then there is express preemption.
What is implied preemption?
The statute is silent.
Preemption if:
- Federal and state laws are mutually exclusive (can’t comply with both at the same time)
- State law impedes achievement of federal objective, OR
- Congress evidences a clear intent to preempt state law
Tip: states can set laws that are stricter than federal law, unless they are prohibited explicitly by Congress
What is the doctrine of inter-governmental immunity?
State may not tax or regulate federal gov’t activity, unless Congress consents to the regulation. The general principles of intergovernmental immunity also prevent federal interference with state governmental functions (fed and state - keep to your own)
It is unconstitutional to pay a state tax out of the federal treasury.
States cannot regulate the federal government if it imposes a substantial burden on federal activity
What is the dormant commerce clause?
The dormant commerce clause (also known as the “negative implications of the commerce clause”) = state or local law is unconstitutional if it places an undue burden on interstate commerce.
- The actor will be a local or state government.
What is the Privileges and Immunities clause of Article 4?
No state may deny citizens of other states the privileges and immunities its own citizens get.
Anti-discrimination, can’t harm out-of-staters (individual citizens)
What is the Privilege and Immunities clause of the 14th Amdt?
No state can a deprive a US citizen of their own privileges or immunities (the right to travel, right to interstate migration)
What is the correct inquiry regarding the Dormant Commerce Clause?
- Does the state law discriminate against out-of-staters?
- If it does NOT discriminate, PI Art 4 doesn’t apply. If it burdens interstate commerce, it violates DCC if its burdens on interstate commerce exceed the benefits.
- If it DOES discriminate, violates DCC (and PI Art 4 applies) unless it is necessary to achieve an important govt purpose (presumptively violative), and no less discriminatory alternative to accomplish objective.
When may a law that would otherwise violate the dormant commerce clause still be OK?
- Congressional approval
- Market participant exception (state govt can give better benefits to in-staters for govt programs or in govt owned businesses) - applies only to DCC, not to PI Art 4.
The market participant exception - Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (buying or selling products, hiring labor, giving subsidies, etc.) If a pricing scheme involves the sale of goods, the state can constitutionally charge whatever prices it desires, even if it discriminates against out-of-staters.
When will PI Article 4 strike down a local/state law?
If law discriminates against out-of-staters with regards to fundamental rights, or ability to earn livelihood, it violates PI under Art 4 unless it is necessary to achieve an important gov’t purpose.
Who cannot use the Privileges and Immunities clause?
Only citizens. Only citizens can sue under the PI clause. If corporation or alien, only DCC is available.
When may states tax interstate commerce?
- States cannot use their tax system to help in-state business
- State may only tax activities if there is a substantial nexus to the state.
- State taxation of interstate businesses must be fairly apportioned.
What is the full faith and credit clause (Art. 4, Sec 1)
Each state shall give full faith and credit t to the judgments of courts in another state, so long as:
- Court that rendered judgment had PJ over the parties and SMJ
- Judgment was on the merits
- Judgment was final
Doesn’t apply to federal governments.
What is the “government action” requirement for enforcement of constitutional protections of individual liberties?
Private conduct need not comply with USC. Constitution only applies with USC.
Government at all levels, as well as officers. Private conduct doesn’t apply.
When can constitutional norms be used to regulate private conduct?
Generally they cannot.
Congress by statute may apply constitutional norms to private conduct (e.g. 13th Amdt - no slavery).
Commerce power can be used to apply constitutional norms to private conduct (cumulative impact).
When may private conduct be forced to comply with the Constitution (even if it isn’t through commerce power or congressional statute)?
- Public functions exception (private entity performing activity that historically has been done exclusively by state gov’t, i.e. own a town, NOT run utility company)
- Entanglement exception (if gov’t affirmatively authorizes, encourages, or facilitates unconstitutional activity, the gov’t must either stop or comply with USC).
Ex. state provides books to school, state leases premises to business, private entity regulates interscholastic sports, profit sharing plus other factors
NOT when govt subsidy to school, not when NCAA orders suspension at state university, not when private club with liquor license from state discriminations, not when state contracts w/ private company to run their lottery even though they manage them closely
To whom does the Bill of Rights apply?
Only applies directly to the federal government.
It is applied to the state and local governments through its incorporation of the due process clause of the 14th Amdt.
In The Slaughterhouse Cases, the Supreme Court held that rights of national citizenship do not include the Bill of Rights, although rights under the Bill of Rights may be held applicable to the states as incidents of due process.
EXCEPTIONS, NOT INCORPORATED:
3d Amdt right not to have soldier quartered in a person’s home
5th Amdt right to grand jury indictment in criminal cases
7th Amdt right to jury trial in civil cases
8th Amdt right against excessive fines (though excessive bail provision applies to states)
What are the three levels of scrutiny for analyzing a constitutional claim
Rational basis, intermediate scrutiny, strict scrutiny
What is the rational basis test?
TEST: Rationally related to a legitimate, conceivable government purpose
Note:
- No least restrictive analysis
- Doesn’t need to be actual purpose
- Burden of proof on challenger
- Govt usually wins
Types:
- Alienage classifications re self gov’t and democratic process
- Congressional regulation of aliens
- Age
- Disability
- Wealth and econ regs
- all others
What is the intermediate scrutiny test?
TEST: Narrowly tailored to important actual purpose
Note:
- No least restrictive analysis
- Important actual purpose, more than just legitimate; can’t sub in conceivable purpose
- Burden of proof: gov’t
Types:
- Gender
- Illegitimacy
- Undocumented kids
What is the strict scrutiny test?
TEST: Necessary to achieve a compelling government purpose
Note:
- Means must be narrowly tailored
- Least restrictive analysis
- Compelling actual purpose, more than legitimate or important
- Burden of proof on gov’t
Types:
- Race
- National origin
- Alienage (generally) (when states discriminate)
What is procedural due process?
Has there been a deprivation of life, liberty, or property?
Procedural safeguards of notice and hearing are available whenever there is a serious deprivation of any life, liberty, or property interest.
What does a “deprivation of liberty” mean for purposes of PDP?
A deprivation of liberty occurs if a person
(i) loses significant freedom of action; or
(ii) is denied a freedom provided by the Constitution or a statute.
NO:
- Damage to one’s reputation generally does not involve a loss of significant freedom of action or of a freedom provided by law. Therefore, it generally does not constitute a deprivation of liberty. (However, it can, if the damage is so severe that employment or associational opportunities are lost.)
- Prisoners rarely have
YES: [someone’s constitutional right]
- Government acts that cause denial of the right to engage in gainful employment
- Loss of a freedom provided by the Constitution,
- Denial of the right to vote
- Right to contract
- Need pre-suspension of drivers license hearing, unless prior evidentiary hearing has occurred (note: a prior conviction constitutes sufficient evidence of this)
Ex. Except in emergency, before adult can be institutionalized, need notice and hearing.
BUT When parent institutionalizing child, only need screening by neutral fact-finder
