Constitutional Law Flashcards
Constitutional approach to MBE
- Identify what level of gov’t is acting (e.g. state, federal, school)
- Determine if question is a “powers” or “rights” issue
- Match the appropriate power/right rules or tests provided by the Constitution
Standing + Elements + Tip
A person has standing if she can demonstrate a concrete stake in the outcome of the controversy shown by an injury in fact-caused by the government-that can be remedied by a ruling in the plaintiff’s favor (i.e., causation and redressability).
Elements: 1) Injury (either personally suffered or if seeking injunctive relief, a likelihood of future harm)
2) Causation
3) Redressability
Tip: On questions that ask “best standing,” look for the answer choice where the plaintiff is PERSONALLY suffering injury (preferably monetary loss)
Standing Exceptions for Third Parties
1) If there is a CLOSE RELATIONSHIP between the plaintiff and the injured third party
2) If the injured third party is unlikely to be able to assert his or her own rights
3) An organization may sue for its members if the members would have good standing, the interest is related to the organizations purpose, and neither the claim nor relief requested requires the individual’s participation
Standing: No Generalized Grievances as a Taxpayer + Exception + Tip for Test Fact Pattern
The plaintiff must not be suing solely as a citizen or as a taxpayer
Exception: taxpayers have standing to challenge gov’t expenditures pursuant to federal statute as violating the Establishment Clause (very narrow)
Tip: Look for fact patterns that generally state the grievance is from a “taxpayer” or “citizen”
Ripeness - Whether Federal Court May Grant Pre-Enforcement Review of a Statute Elements + Tip
The question of whether a federal court may grant pre-enforcement review of a statute or regulation
Elements: 1) The hardship that will be suffered without pre-enforcement review
2) The fitness of the issue and the record of judicial review
Tip: On MBE, questions involving a request for “declaratory judgments” typically involve ripeness
Mootness + Exceptions
If events after the filing of a lawsuit end the plaintiff’s injury, the case MUST be dismissed as moot
Exception: 1) The wrong is capable of repetition but evading review
2) Voluntary cessation, D voluntarily halts the offending conduct but may resume at any time
3) Class action suits, as long as one member has ongoing injury
Political Question Doctrine + Types of Non-judiciable Cases
Refers to constitutional violations that the federal courts will not adjudicate.
Types of Non-Judiciable Cases:
1) The “republican form of gov’t clause”
2) Challenges to the President’s conduct of foreign policy
3) Challenges to the impeachment and removal process
4) Challenges to partisan gerrymandering
SCOTUS Case Review + Remember State Court Decision
Virtually all cases come to the SCOTUS by writ of certiorari, unless appeals exist for decisions of 3-judge federal district courts
Remember: For the SCOTUS to review 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, and the SCOTUS’s federal law ground will not change the outcome of the case, the SCOTUS CANNOT hear it.)
Principal of Sovereign Immunity + Exceptions
Suits against states in federal courts are barred by the 11th Am & Suits against states in state courts or fed. agencies are barred by sovereign immunity.
Exception: 1) Waiver is permitted
2) States may be sued pursuant to fed laws adopted under 14th Amendment
3) Fed gov. may sue state gov.
4) Bankruptcy proceedings
Sovereign Immunity: State Officers + Exception
May be sued for injunctive relief or money damages to be paid out of their own pockets
Exception: May not be sued if it is the state treasury that will be paying retroactive damages
Congressional Power
There MUST be express or implied Congressional power for them to act, there is no general police power for federal gov’t (except for federal lands, native american lands, the military or D.C.)
The Necessary and Proper Clause
Congress may use ANY MEANS, not prohibited by the Constitution, to carry out its powers
Congressional Power: Taxing/Spending Power
Congress may tax and spend for the general welfare
Congressional Power: Commerce Clause Regulations + Exception
1) Congress may regulate the channels of interstate commerce
2) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
3) Congress may regulate economic activities that have a substantial effect on interstate commerce
Exception: A substantial effect CANNOT be based on cumulative impact based on non-economic activity.
10th Amendment Limits on Congressional Powers + Principles
All powers not granted to the US, nor prohibited to the states, are reserved to the states or the people
Principles: 1) Congress CANNOT COMPEL state regulatory or legislative action (BUT, they may INDUCE action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program so long as they are NOT UNDULY COERCIVE)
2) Congress may prohibit harmful commercial activity by state governments
14th Amendment Limits on Congressional Powers
Congress may not create new rights or expand the scope of rights, they may only act to prevent or remedy violations of already existing rights
Congress’ ability to delegate legislative power + Tip
NO LIMITS on Congress’ ability to delegate legislative power
Tip: Every answer choice that states a federal law is unconstitutional due to Congress delegating legislative power
Legislative Vetos and Line-Item Vetos + Remember
Legislative vetos and line-item vetos are unconstitutional
Remember: For Congress to act, there ALWAYS must be bicameralism (passage by both House and Senate) and presentment (giving bill to the President to sign or veto)
Congress’ ability to delegate executive power
Congress MAY NOT delegate executive power to itself or its officers
Treaties Conflicting with Laws
1) Treaties prevail over conflicting state laws
2) If a treaty conflicts with a federal law, the one adopted LAST in time controls
3) If a treaty conflicts with the US Const., it is INVALID
Executive Agreements v. Treaties
1) Executive agreements do not need Congress’ approval, treaties do.
2) Both may have the same effect
3) Executive agreements ALWAYS prevail of conflicting state laws, but NEVER conflicting federal laws or the Constitution
Limits on the Recognition on Power of Foreign Countries by Congress
It is UNCONSTITUTIONAL for Congress by statute to designate the capital of a foreign country, that is the President’s power alone.
Who has the power to determine whether to admit individuals to the U.S.?
The President has broad discretion, not Congress
Who has the power to use American troops in foreign countries?
The President has broad powers as Commander-in-Chief, not Congress
Appointment of ambassadors, federal judges, and Officers of the U.S.
President appoints, Congress confirms
Appointing inferior officers + definition of inferior officers
Congress may VEST appointment of inferior officers in the President, the heads of departments or the lower federal courts, BUT CONGRESS MAY NOT appoint members of a commission that exercises enforcement powers
Definition: An inferior officer is one who can be fired by an officer of the U.S. (e.g. U.S. Attorneys because they can be fired by the Attorney General)
Removal Power + Exceptions
Unless limited by statute, the President may fire ANY executive branch officer
Exception: 1) For Congress to limit removal, it must be an office where independence from the President is desirable, AND 2) Congress can only limit removal where there is good cause (they CANNOT prohibit removal)
Impeachment and Removal + Remember (2)
The President, Vice President, federal judges and officers of the U.S. can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors
Remember: (1) Impeachment DOES NOT remove a person from office, only conviction from the Senate can do that.
(2) Impeachment requires a majority vote in the H.O.R., and conviction requires 2/3 vote in the Senate.
President as a party in Civil Suits + Remember
The President has ABSOLUTE immunity to civil suits for money damages for any actions WHILE IN OFFICE.
Remember: The President does NOT have immunity for actions that occurred prior to taking office
Executive Privilege For Papers and Conversations + Exception
The President has executive privilege for presidential papers and conversations
Exception: When there is an overriding government interest
Presidential Pardons + Exception
The President has the power to pardon those accused or convicted of FEDERAL crimes (not civil liability)
Exception: The President can never pardon those impeached by the H.O.R.
Implied Preemption Rules
1) If federal law and state law are mutually exclusive (e.g. both cannot function simultaneously), federal law preempts state law
2) If state law impedes the achievement of a federal objective, federal law preempts state law
3) If Congress evidences a clear intent to preempt state law, federal law preempts state law
Inter-governmental Immunity
States may NOT tax or regulate federal government activity
Dormant Commerce Clause Definition + When to Apply
State or local laws are unconstitutional if it places an UNDUE BURDEN on interstate commerce
When to apply Dormant Commerce Clause v. Commerce Clause? Ask WHO IS THE ACTOR in the question. If it’s Congress, then look to Commerce Clause, but if its state or local gov’t, look to Dormant CC
Privileges and Immunities Clause of Article IV + When to Apply
No state may deny citizens of other states of the privileges and immunities it affords its own citizens (anti-discrimination provision)
Apply ONLY when states are discriminating against out-of-staters
Privileges Or Immunities Clause of 14th Amendment + Remember (Travel Includes…) + Tip
Generally always refers to the privileges and immunities of people to travel between states.
Remember: The right to travel includes the RIGHT TO BE TREATED EQUALLY IN A NEW STATE OF RESIDENCE (e.g. limiting welfare benefits to first year residents)
Tip: ALWAYS the wrong answer, unless the question involves RIGHT TO TRAVEL
Analysis: If state law DOES NOT discriminates against out-of-staters (P&I and DCC)…
P&I: The privileges and immunities clause of Article IV does not apply
DCC: If the law burdens interstate commerce, it violates the dormant CC if its burdens exceed its benefits
Analysis: If state law DOES discriminate against out-of-staters… (DCC and P&I) + Exceptions + Tip
DCC: If the law burdens interstate commerce, it violates the dormant CC UNLESS it is necessary to achieve an important government purpose
Exceptions: 1) Congressional approval
2) Market participant exception (where a state or local gov’t prefers its own citizens in receiving benefits from gov’t programs, e.g. in-state tuition)
P&I: If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the P&I clause of Article IV, UNLESS it is necessary to achieve an important gov’t purpose
Tip: Corporations and aliens CANNOT use the privileges and immunities clause, therefore, only analyze dormant CC.
State Taxation of Interstate Commerce
States CANNOT use their tax systems to help in-state business, they can only tax activities if there is a substantial nexus to the state
State Action Doctrine + Remember
The Constitution applies ONLY to government action, private conduct need not comply with the Constitution
Remember: Congress, by statute, MAY apply constitutional norms to private conduct (e.g. 13th Amendment can be used to prohibit private race discrimination and commerce power can be used to apply constitutional norms to private conduct)
Exceptions where private conduct MUST comply with the Constitution + Entanglement Exception Examples
1) Public Function Exception (if a private entity is performing a task traditionally exclusively done by the gov’t, the constitution applies)
2) Entanglement Exception (Constitution applies if the gov’t affirmatively authorizes, encourages, or facilitates unconstitutional activity)
Examples of the Entanglement Exception:
1) Courts cannot enforce racially restrictive covenants
2) There is state action when the gov’t leases premises to a restaurant that racially discriminates
3) There is state action when a state provides books to schools that racially discriminate
4) State action when private entity regulates interscholastic sports within a state
5) NO state action when a private school that is over 99% funded by the gov’t fires a teacher because of her speech
6) NO state action when NCAA orders the suspension of a basketball coach at a state university
7) NO state action when a private club with a liquor license from the state racially discriminates
(If the case involves race, court seems likely to apply entanglement exception, but other reasons prob doesn’t – DOES NOT ALWAYS WORK)
Levels of Scrutiny
1) Rational Basis Test (a law is upheld if it is RATIONALLY RELATED to a LEGITIMATE gov’t purpose)
2) Intermediate Scrutiny (a law is upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT gov’t purpose)
3) Strict Scrutiny (a law is upheld if it is NECESSARY to achieve a COMPELLING government purpose)
