Constitutional Law Flashcards
Which clause of the Constitution protects members of Congress from statements and conduct made in the regular course of the legislative Process?
The Speech or Debate Clause of Article I
T/F - Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause.
True
Is there a right to travel internationally? If so, is it a fundamental right triggering strict scrutiny?
Although there is a right to travel internationally, it is not a fundamental right. The federal government may limit travel to foreign countries as long as it has a rational basis for doing so.
Is there a federal equal protection clause?
Technically no. However, the Supreme Court has held that the Due Process Clause of the Fifth Amendment (which applies to the federal government) incorporates the Equal Protection Clause of the Fourteenth Amendment (which applies to the states).
What is the Comity Clause also known as? What does it do? Who does it apply to?
The Privileges and Immunities Clause. It prohibits a state from discriminating against the citizens of another state. It does not apply to the federal government.
Which type of violations of the Equal Protection Clause trigger intermediate scrutiny?
Discrimination based on gender or legitimacy.
What is the order of importance given to these types of legislation from top to bottom: executive agreements, congressional legislation, state statutes, treaties?
1) Congressional Legislation
2) Treaties
3) Executive Agreements
4) State Statutes
What level of scrutiny is triggered when state action discriminates against the poor? Are there exceptions?
Generally, this type of discrimination is only subject to rational basis scrutiny. However, denying an indigent person a fundamental right (such as divorce or appeal of imprisonment) through the imposition of a court fee that they are unable to pay violates the Due Process and Equal Protection Clauses of the Fourteenth Amendments.
T/F - The right to assert a Tenth Amendment challenge to a federal statute belongs only to the states.
False. An individual, as well as a state, may have standing to challenge a federal statute on Tenth Amendment grounds.
Does an assignee of a claim have standing under Article III to bring the claim even though they aren’t the ones suffering injury on the original claim?
Yes, even if the claim is mature at the time of assignment and the assignment is made for collection only. Although the assignor is the one who suffered injury, an assignee may sue on the basis of the assignor’s injuries.
What does Section 5, the Enabling Clause, of the Fourteenth Amendment do?
Permits Congress to pass legislation to enforce the EP and DP rights guaranteed by the Fourteenth Amendment, AS LONG AS there is “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.
What type of conduct can Congress not override state government action under the Enabling Clause of the Fourteenth Amendment to prevent?
Wholly private conduct.
T/F - A president enjoys immunity from an action for civil liability that stems from conduct before and after the president took office.
False. A president does not enjoy immunity from an action for civil liability that stems from conduct before the president took office. This includes remarks made during presidential debate.
What does the Tenth Amendment do? What is its effect on federally compelled state legislation?
It specifies that all powers not specifically assigned to the federal government are reserved to the states and the people. The ability to enact state legislation is an exclusive state power, and the federal government cannot directly compel a state to enact legislation.
What is Article III of the Constitution the source of?
The Judicial Power. Article III lists the kinds of cases that come within the judicial power of the United States. The most important are diversity jurisdiction and federal question jurisdiction.
What is the major exception to the judicial power?
The 11th Amendment. This enforces the preexisting concept of state sovereign immunity.
What is State Sovereign Immunity? Are there any exceptions?
You cannot sue a state for money damages in either in that state’s own court or in federal court UNLESS the state consents OR the U.S. Congress expressly says so to enforce 14th Amendment rights.
Note: You may sue a state for money damages in a sister state’s court.
What levels of government does the 11th Amendment protect?
States and state agencies. The 11th Amendment sovereign immunity does NOT protect local governments (no protection for cities, counties or towns).
If a state government is protected by the 11th Amendment, then who is left to sue? What kind of damages can you seek?
You can sue a state officer. You can always get injunctive relief simply by enjoining the appropriate state officer (e.g., the attorney general). Money damages are also available, but ONLY from the officer personally.
Note: Damages from the state treasury are barred unless Congress expressly says so to enforce individual rights.
What are the types of Jurisdiction of the U.S. Supreme Court? Explain them.
Original Jurisdiction and Appellate Jurisdiction. Original Jurisdiction is when a case may first be filed in the Supreme Court (these are mostly controversies between states. Appellate Jurisdiction is established by either Certiorari or by direct appeal.
What is a Writ of Certiorari? Why is it important?
Almost all cases come to the Supreme Court by way of writ of certiorari. The key factor is that certiorari is discretionary with the Supreme Court (making it the only court with discretionary jurisdiction.
Who can control the Supreme Court’s appellate jurisdiction? How?
Congress can effectively control the Supreme Court’s docket by legislating exceptions to its appellate jurisdiction.
What does AISG stand for? Why is it important?
Adequate and Independent State Grounds. This arises only in the U.S. Supreme Court when reviewing a state court decision. It means that the court has no jurisdiction if the judgment below rested on an adequate and independent state ground. In other words, the SC can only review a state court judgment ONLY if it turned on federal grounds.
Note: If the claimant (party claiming a federal right) wins under state law anyways, then you have AISG.
T/F - The U.S. Constitution is the ceiling, not the floor. Explain.
False. The U.S. Constitution is the floor, not the ceiling. This means that a state court construing a state constitution can always give more protection than the U.S. Constitution. However, it cannot give less protection.
Do you have Adequate and Independent State Grounds if state law adopts or follows a federal law directly?
No. This would not be “Independent.”
If a state court decision involves similar state and federal statutes, but is unclear on whether it relies on state law or federal law in its determination, can the U.S. Supreme Court review for a federal issue? Is there AISG?
Yes, the Supreme Court can review the decision. Only have Adequate Independent State Grounds if it is clear that the claimant won under the state statute. If the Supreme Court disagrees with the state court’s understanding of the federal issue, it remands the case back to state court so that the state court can reconsider the case under state law.
What must be shown to have standing to sue under Constitutional grounds? Explain each element.
1) Injury - Almost anything can be injury (past or future), especially if Congress says so. The injury must be concrete (not abstract), but it doesn’t have to be economic. Mere ideological objection is not injury.
2) Causation - Defendant’s act must have caused or will cause the injury.
3) Redressability - The court must be able to remedy or redress the injury. Injuries in the past usually are redressed by damages, whereas injuries in the future are redressed with an injunction.
T/F - Past injury gives automatic standing to seek an injunction for future injury.
False. You must show that the injury will happen again. Past injury is not enough to seek an injunction to redress future injury.
Does an organization have standing to sue on behalf of its members?
Yes as long as its members have standing.
Is the injury element of standing satisfied if you merely have your freedom of movement or enjoyment of public space impaired?
Yes.
Hypo - If Corporation A is wrongfully denied a business license, and Corporation B receives a license, can Corp. A sue to enjoin the government from licensing Corp B? Why or Why not?
No. This type of relief would not redress the wrong to Corp. A. A has to sue for its own license.
T/F - Tax payers always have standing to challenge their own tax liability and to challenge government expenditures.
False. Taxpayers do always have standing to challenge their tax liability. However, they may only challenge government expenditures in very rare situations arising under the Establishment Clause (dealing with religion).
Note: State courts often allow municipal taxpayers to challenge a municipality’s expenditures.
Do legislators have standing to challenge laws that they voted against?
No.
Can a third party have standing to raise the rights of someone else? Explain.
Generally, the answer is no. However, parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction.
Example: Doctor not compensated for providing abortion services can raise the rights of women who wanted to have abortions. The doctor and patient are involved in an exchange or transaction.
Describe the timeliness requirement for a claim under Constitutional law.
Ripeness - concerns the prematurity of a case. Here, you must show actual harm or an immediate threat of harm.
Mootness - concerns cases that are overripe and are dismissed. Cases can become moot during trial or on appeal. There is an exception for controversies capable of repetition, yet evading review, even if they appear to be moot (e.g., pregnancies and abortion - the case will last much longer than the pregnancy, and these type’s of claims will always become moot without the exception).
Can federal courts issue advisory opinions? Can they rule on the constitutionality of propose legislation?
No and no. This is commonly tested. The federal courts decide cases; they do not make recommendations to executive officers.
Can the courts decide political questions?
No, these are non-justiciable questions (no manageable standards for judicial decision-making).
Types of non-justiciable political questions include: Guarantee Clause (protecting the republican form of government); Foreign affairs; Impeachment procedures; and Political gerrymandering.
General limits to the Legislative Power.
Federal government can do almost anything it likes, so long as it does not violate individual rights.
On the Bar Exam, what are the three answers that will ALWAYS be wrong when deciding which argument is “in favor of congressional power” for passing a certain type of legislation?
1) “Promoting” the General Welfare - This is NOT a power of Congress.
2) Police Power - The federal government does NOT have a police power (belongs to the states).
3) Necessary and Proper - this is NOT a free-standing power of congress. This only works as an add-on to some other legislative power.
What are the three big powers of Congress that the Bar Exam likes as answers?
1) Taxing Power - pick this when the law involves a tax.
2) Spending Power - pick this whenever federal money (not state) is being spent or disbursed.
3) Commerce Power - pick this when in doubt. This is a very broad power.
What is the Commerce Power, and what does it regulate?
The Commerce Power allows Congress to regulate almost anything as interstate commerce. Congress can regulate the following:
1) The “channels” of interstate commerce (highways, seaways, airways, etc.);
2) The “instrumentalities” of interstate commerce (cars, trucks, ships, railroads, etc.); and
3) Any “intrastate and interstate activity (economical or commercial) that has a substantial effect on interstate commerce.
How is substantial effect on interstate commerce measured?
In the aggregate. Question is “whether the aggregate activity of everyone doing the same thing has a substantial effect on interstate commerce.” The answer is almost always yes.
How does the Taxing Power of Congress work?
Congress has the power to tax an activity (even when used as a preventative) as long as the tax is “rationally related to raising revenue.”
How does the Spending Power of Congress work?
Congress can use its funds to bribe states to pass certain laws (example: conditioning federal highway funds to have state’s raise their drinking age to a minimum of 21).
Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce clause. The Spending Power includes “spending for the general welfare.” Note that this is different than “promoting the general welfare,” which is not a power of Congress.
What does Anti-Commandeering mean? What is its effect on Congress? What are Congress’s alternatives?
This means that Congress cannot force states to adopt or enforce federal regulatory programs. In other words, it cannot commandeer state and local officers to carry out federal programs. Congress can still use the Spending Power to bribe the state OR it can use its own federal officers to carry out the regulatory program.
Example - cannot require state and local law enforcement to carry out a federal act that requires background checks for people purchasing firearms.
T/F - The President has the power to declare war.
False. Congress has the power to declare war.
Who has the power to provide for military discipline of US armed forces members? What are the limitations?
Congress has this power. Congress CANNOT provide for military trial of U.S. civilians. Thus, it is limited to armed forces and enemies.
Who has the power to maintain the Army and the Navy?
Congress.
Which Amendments are the Civil War Amendments? What do they do?
13th - Congress has the broad power to legislate against racial discrimination, whether public OR private. This includes purely private racial discrimination!
14th - Congress has the power to remedy violations of individual rights by the government as defined by the courts. Thus, Congress cannot redefine constitutional rights by legislation.
15th - Congress has the power to ensure no racial discrimination in voting
T/F - The 13th Amendment allows Congress to legislate against purely private racial discrimination.
True.
What are the requirements for remedial, congressional legislation under the 14th Amendment?
To be properly remedial, the legislation must have “congruence” and “proportionality.” That is there must be a reasonable fit between the remedial law enacted by Congress and the constitutional right as declared by the Supreme Court.
T/F - Congress has the power to overrule the Supreme Court’s decisions and define new rights.
False! Congress is only allowed to enact legislation protecting rights as they are defined by the Supreme Court.
What is the RFRA? Does it apply to the states?
The Religious Freedom Restoration Act stated that religious believers have a right not to obey otherwise valid laws, unless the government can show a “compelling interest in enforcing the law against them.”
This was struck down by the Supreme court as it made any law (whether aimed at religion or merely incidental) illegal if religious practices were affected. HOWEVER, it is only unconstitutional as it applies to the states. RFRA is valid as it applies to federal laws. These laws must accommodate religious beliefs.
What are the Powers of the President domestically? Can anything enhance this power? Any restrictions?
The domestic Executive Power gives the President the power to enforce the law, not to make it or break it. The power is greatest when authorized by statute. The President’s powers are subject to control by statute.
What Executive Powers are exclusive to the President (not subject to statutory control or Congressional limits)?
1) Pardon Power - President can pardon or commute punishment for all FEDERAL offenses. (Governors have a similar power for state offenses).
2) Veto Power - President has 10 days to veto legislation (with or without reason). He cannot cherry pick and veto specific items in the legislation while accepting others. This veto can be overridden by a 2/3 majority vote of both houses (HoR and Senate).
3) Appointment and Removal of Executive Officers - ONLY the President (or his appointees) can hire or fire executive officers. Some senior officers require the advice and consent of the Senate. The Senate has the power of rejection here. This does not mean the Senate has the power of appointment.
Who are executive officers?
Anyone who takes action on behalf of the U.S.
Note: Just as Congress cannot hire or fire an executive officer, it cannot give executive power to anyone it can hire or fire.
What are the powers of the President in Foreign Affairs?
The Executive Power labels the President as Commander in Chief meaning he or she has control over military decisions (this is not the power to declare war–that belongs to Congress).
The Executive Power in Foreign Affairs also gives the President the power to make Treaties and Executive Agreements.
How and by who are Treaties created? What are their authority?
The President has the Executive Power to negotiate Treaties. They require approval by a two-thirds vote of the Senate. Once approved, it has the same authority as a statute.
How and by who are Executive Agreements created? What are their authority?
Executive Agreements are negotiated by the President and are NOT submitted for approval by the Senate (unlike Treaties). They can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state statutes. They do not have binding status like a treaty does.
What is Impeachment? Who does it apply to? How is it carried out?
Impeachment is an accusation that applies to executive officers of high crimes or misdemeanors requiring a 2/3 majority vote of the House of Representatives.
Trial is in the Senate, and conviction requires a 2/3 majority vote of the Senate.
Remedy - Removal from office. No other penalties apply.
What is Impoundment of funds? Is it allowed?
Impoundment is the withholding of funds. If a statute gives the President discretion to spend or withhold funds, he may do so.
However, if a statute unambiguously requires that funds be spend, the President has no power to impound funds and not do so.
What is a Legislative Veto? Is it constitutional?
A legislative veto is unconstitutional. This happens when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. This has the effect of evading the President’s guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution.
What does Delegation of Powers mean with respect to Congress? When can they do this?
Congress can delegate its power to administrative agencies so long as there are “intelligible standards” governing the exercise of that delegated power. Almost all delegations of legislative powers are upheld.
T/F - The President have absolute immunity for official acts and acts done prior to taking office.
False. The President only has absolute immunity with regard to official acts. There is NO immunity for acts done prior to taking office (none whatsoever).
