Constitutional Law Flashcards
Justicibility (SPAR ME)
Standing, Political Question, Abstention, Ripeness, Mootness, Eleven Amendments Sovereign Immunity
Justicibility: Standing
P must show 1) an actual injury (or imminent threat), 2) caused by D, that is 3) redressable by the court. Here,
Justicibility: Standing - Third Party Standing
Generally, a person may not assert the claims of another, however, the court will allow third party standing if: 1) there is a special relationship between the claimant and the third party (i.e. doctor/patient) or 2) it is difficult for the claimant to assert his own right, or 3) if claim is on behalf of an organization.
An organization may assert claims of their members so long as 1) members of the org have suffered actual injury, 2) injury related to the org’s purpose, and 3) individual member participation in the lawsuit is not required. Here,
Justicibility: Standing - Taxpayer/Citizen
Tax payers usually do not have standing to challenge government expenditures, although a narrow exception exists allowing challenges under the Establishment Clause. Here,
Justicibility: Political Question
Political questions are issues constitutionally committed to other branches or inherently incapable of judicial resolution. Here,
Justicibility: Abstention
Federal courts will abstain from resolving constitutional questions hinging on unsettled matters of state law. However, in instances of proven harassment or bad faith prosecutions, the federal court may step in. Here,
Justicibility: Ripeness
The courts will not grant a pre-enforcement ruling on a statute or regulation unless P will suffer harm or is under threat of immediate injury. Here,
Justicibility: Mootness
If the matter has already been resolved, the case will be dismissed as moot. P must present a live case in controversy during all stages of the proceeding unless: 1) the controversy is capable of repetition but evading review, 2) D voluntarily stops conduct but is free to resume, or 3) in a class action, so long as at least one member of the class still has a viable claim. Here,
Justicibility: Eleventh Amendment - Sovereign Immunity
The 11th A prohibits a citizen from suing a state without a state’s express consent. However, if P sues the appropriate state official, or a subsidiary like a town or city, the suit will not be barred by the 11th Amendment. Here,
Executive Power: Foreign Powers
The President has authority to represent the U.S. in foreign relations, including the ability to make treaties, appoint ambassadors, and act as commander in chief of the armed forces.
Executive Power: Foreign - Treaty Power
The President can negotiate treaties with foreign countries, but they must be ratified by 2/3 senate approval. Treaties prevail over conflicting state laws and older federal statutes. Here,
Executive Power: Foreign - Executive Agreements
The President may enter into agreements signed by the head of a foreign country, without senate approval. Executive agreements can be used for any purpose and they prevail over conflicting state laws, but not federal laws. Here,
Executive Power: Foreign - Warn and Foreign Releations
The President has broad powers as Commander in Chief to act militarily in foreign hostilities. However, only Congress can make a formal declaration of war. Here,
Executive Power: Domestic - Appointment Power
The President has the power to appoint ambassadors, federal judges, and other high-level officers with the advice and consent of the Senate. Here,
Executive Power: Removal Power
The President can remove high level, purely executive branch officers at will, without the interference of Congress. However, Congress may place limitations on the removal power where independence from the President is desirable (i.e. remove only for cause). Here,
Executive Power: Pardon Power
The P can grant pardons for all federal criminal offenses but not for state crimes, civil liabilities, or impeachment. Here,
Executive Power: Veto Power
If P vetoes an act of Congress, the act may still become a law if the veto is overridden by 2/3 of EACH house. Here,
Executive Power: Veto Power - Pocket Veto
The P has 10 days to exercise the veto power. If he fails, the bill will automatically be vetoed if Congress is NOT in session. If congress IS in session, it will become law. Here,
Executive Power: Veto Power - Line-Item Veto
P may not cancel part of a bill and sign the rest into law. All or nothing. Here,
Executive Power: Chief Executive
The President must “take care that laws be faithfully executed”. However, the President’s authority depends on if he’s acting with congressional approval as decided in Youngstown:
If P acts with express or implied congressional authority, his action is at its highest authority.
If P acts where congress is silent, his action will be upheld unless it usurps power from another branch.
If P acts against express congressional will, he has little authority. Here,
Executive Power: Domestic War Power
The President has extensive military powers during times of war, including the power to act over domestic affairs involving military necessities. Here,
Executive Power: Executive Privilege
The P has privilege to keep certain communications secret, particularly communications with regards to national security. However, in criminal proceedings, presidential communications will be available where the prosecution shows a need for such communications. Here,
Executive Power: Executive Immunity
The P has absolute immunity from civil damages for acts while in office. However, this immunity does not extend to actions before P took office. Here,
Executive Power: Impeachment
The President, VP, and all civil officers are subject to impeachment for treason, bribery, high crimes, and misdemeanors. Impeachment requires a majority vote in the House. Conviction and removal from office requires 2/3 vote of the Senate. Here,
Legislative Power:
There is no general federal police power over states (does for Indian res, military bases, etc.) For Congress to act, it must have express or implied authority through one if its “sources of power”. Congress also has no limits on delegating its powers. Here,
Legislative Power: Necessary and Proper Clause
Congress may take any action, not prohibited by the Constitution, that is necessary and property to execute ANY power granted to ANY branch of the federal government. This power alone cannot support federal law, rather, it must work in conjunction with another federal power. Here,
Legislative Power: Commerce Clause
Congress has the exclusive power to regulate all foreign and interstate commerce. Federal law may regulate the 1) channels, 2) instrumentalities, and 3) economic activities that have a substantial effect on interstate commerce. Here,
Commerce Clause - Channels of Interstate Commerce
Congress may regulate the channels of interstate commerce such as roads, rivers, and the internet. Here,
Commerce Clause - Instrumentalities, Persons, and Things of Interstate Commerce
Congress may regulate all instrumentalities, persons, and things directly related to interstate commerce. Here,
Commerce Clause - Economic Activities that have Sub Effect on Interstate Commerce
Congress may regulate intrastate economic activities that, in the aggregate, have a substantial effect on interstate commerce. Here,
(noneconomic activities can NOT be based on cumulative impact)
Legislative Power: Taxing Power
Congress has the power to tax so long as the tax bears some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. However, neither Congress nor the states may tax exports to foreign countries. Here,
Legislative Power: Spending Power
congress may spend for the “general welfare”, which means spending can be for any public purpose. Here,
Legislative Power: Citizenship
Congress may establish uniform rules of citizenship. This gives Congress plenary power over aliens to grant or take away citizenship. Aliens have no right to enter US, but resident aliens are entitled to a hearing before deportation. Here,
Legislative Power: Civil Rights
Congress may restrict state activities that violate civil rights. Here,
Legislative Power: Property
Congress may dispose of federal properties and make rules territories and property of the United States. Here,
Legislative Power: War
Congress has the power to declare war, raise and support armies, and provide for and maintain a navy. Here,
Preemption/Supremacy Clause
While it is possible for states and the federal government to pass legislation on the same subject, the Supremacy Clause provides the Constitution, and federal laws, are the SUPREME LAW of the land and preempt all conflicting state and local laws. Preemption can be express, implied, or by impeding on a federal objective/intent. Here,
Supremacy Clause - Express Preemption
If a federal statute expressly says that federal law is exclusive, then state and local laws are preempted. Here,
Supremacy Clause - Implied Preemption
If complying with both federal and state law is impossible, then federal law preempts state law. Here,
Supremacy Clause - Federal Objective
If state law impeded the achievement of a federal objective, federal law preempts state law. Here,
Supremacy Clause - Congressional Intent
If Congress evidences a clear intent to preempt state law, federal law preempts state law. Here,
(ex. Immigration and bankruptcy law “did congress intend to occupy the field?”
Supremacy Clause - Foreign Commerce
The regulation of foreign commerce is exclusively a federal power - states cannot place a labeling requirement on foreign goods. Here,
10th Amendment
All powers NOT granted to the federal government, nor prohibited to the states, are reserved to the states or the people. States have police power to enact laws for the health, safety, and welfare of its citizens so long as the laws do not conflict with federal law and interstate commerce. Congress can induce state action by putting strings on grants, so long as the conditions are stated and they relate to the purposes of the spending program. Here,
Dormant Commerce Clause
The state or local laws that place an undue burden on out-of-state commerce to protect local economic interests are almost always unconstitutional. This is because of the implied negative implications of the Commerce Clause. Discrimination can appear on the face of the law, or it can be discriminatory in its impact. Here,
DCC - Facial Discrimination
If a law discriminates against out of state competition in its face, then the law is invalid unless it furthers an important non-economic government purpose AND there is no less-discriminatory alternative. Here,
Narrow Exception: State is acting as a market participant or Congressional approval.
DCC - Non-Facial Discrimination
If the law does NOT facially discriminate against out of state competition, then it will violate the DCC if 1) the law burdens interstate commerce and 2) its burden on commerce exceeds its benefits. Here,
Privileges and Immunities Clause of Article IV (always raise with DCC)
No state may deny citizens of other states the privileges and immunities it affords its own citizens. If a state law discriminates against out of staters regarding their ability to earn their livelihood (economic interest or fundamental rights) then the law is unconstitutional, unless it is necessary to achieve an important government interest. Corporations and aliens are NOT protected by this clause. Here,
Privileges and Immunities Clause of 14th Amendment
States may not deny their citizens the privileges or immunities of national citizenship (right to interstate travel). Here,
Full Faith and Credit
A judgment from one state court is entitled to full faith and credit in other state courts. This clause applies only if 1) the court that rendered the judgment had jurisdiction over the parties, 2) the judgment was on the merits, and 3) the judgment was final. Here,
