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