Constitutional Law Flashcards
Standing
1) injury in fact; 2) causation; 3) redressability
Exceptions to no third party standing
1) close relationship; 2) allowed if third party unlikely to be able to assert own rights; 3) organizational standing (note plaintiff must independently meet all other standing requirements)
Organizational standing
1) members have standing; 2) interests germane to organization’s purpose; 3) neither claim nor relief requires participation of individual members
Generalized grievances
No. Plaintiff cannot be suing solely as citizen or taxpayer
Exception to prohibition of generalized grievances
Taxpayers have standing to challenge expenditures pursuant to fed statutes as violating Establishment Clause
Ripeness
1) hardship that will be suffered without preenforcement review; 2) fitness of issues and the record for judicial review.
Mootness
If events after filing end plaintiff’s injury then case dismissed as moot (live controversy at all stages of review)
Exceptions to mootness
1) wrong capable of repetition but evading review; 2) voluntary cessation and free to resume at any time; 3) class action suits (so long as at least one member still has live controversy, ok)
Political question doctrine
1) republican form of government; 2) challenges to President’s conduct in foreign policy; 3) challenges to impeachment and removal process; 4) challenges to partisan gerrymandering
Supreme Court review without writ of cert
1) appeals for three judge district court panels; 2) original and exclusive jx for suits between state governments
Final judgment rule
SCOTUS may hear cases only after there’s been final judgment of highest state court/fed ct. of appeal, or 3 judge fed district court; generally no interlocutory review
Independent and adequate state law ground of decision
If state court decision rests on two grounds, one state one fed, if SCOTUS reversal of fed law ground wouldn’t change outcome in case, SCOTUS can’t hear it
Can federal courts and state courts hear suits against state governments?
no
Sovereign immunity (11th Amendment)
Bars suits against: 1) states in fed court; 2) states in state courts or fed agencies
Exceptions to sovereign immunity
1) Waiver (explicit); 2) states sued pursuant to section 5 of 14th Amendment (only, no other Constitutional provisions); 3) fed government sues state governments; 4) bankruptcy proceedings
Suits against state officers
allowed. Can be sued for injunctive relief and money damages (so long as paid out of own pockets and not from state treasury that will be paying retroactive damages)
Abstention
Fed courts may not enjoin pending state court proceedings
Congress’s authority to act
Must be express or implied power (no general police power but can tax/spend for police power and can legislate under exceptions to police power - military, Indian reservations, fed land/territories, D.C.)
Necessary and proper clause
Congress may make all laws necessary and proper to carry out authority, ALWAYS attached to other Constitutional provisions
Taxing and spending for general welfare
Congress can act
Congressional Commerce Power
1) regulate channels of interstate commerce; 2) regulate instrumentalities of interstate commerce and persons or things in interstate commerce; 3) may regulate economic activities that have substantial effect on interstate commerce (in area of non-economic activity, a substantial effect cannot be based on cumulative impact)
Tenth Amendment
Limits Congressional powers - all powers not granted to U.S. nor prohibited to states, are reserved to states or people
Can Congress compel state regulatory or legislative action?
No (e.g., conscripting state officials), but CAN induce action by putting strings on grants, so long as conditions are expressly stated and related to the purpose of the spending program (can’t be unduly coercive)
Can Congress prohibit harmful commercial activity by state governments?
yes
Congress’s power under section 5 of 14th Amendment
Can’t create new rights or expand scope of rights; can act to prevent or remedy violations of rights recognized by courts and laws must be proportionate and congruent to remedying proven violations (narrowly tailored)
Limits on Congressional delegation of powers
none on ability to delegate legislative power; legislative/line item vetoes unconstitutional (need bicameralism and presentment); may not delegate executive power to itself or officers
Executive foreign policy power
1) enter into treaties with advice and consent of Senate; 2) make executive agreements w/o Senate input; 3) broad powers as Commander-in-Chief to use American troops in foreign countries even if not necessarily military in nature (e.g., humanitarian aid)
Executive domestic affairs power
1) appointment power (ambassadors, fed judges, officers of U.S. - Congress can vest appointment of inferior officers in President, heads of departments or lower fed courts, can’t give itself or officers appointment power); 2) removal power (unless removal limited by statute, President may fire any executive branch office); 3) Executive privilege (may yield to other important governmental interests); 4) Pardon power over those accused of or convicted of federal crimes
Ability of Congress to limit removal of executive branch officers
1) must be an office where independence from President is desirable; and 2) Congress cannot prohibit removal, can only limit removal to showing good cause
Impeachment of POTUS, VPOTUS, federal judges/officers
impeached and removed from office for treason, bribery, high crimes and misdemeanors. Impeachment by majority of House (doesn’t remove from office); conviction by 2/3 vote in Senate
Presidential immunity from civil suits
Absolute immunity from civil suits for money damages for actions while in office, no immunity for actions that occurred prior to taking office
Preemption
Supremacy Clause provides Constitution and laws/treaties made pursuant to it are supreme law of land and preempt state law
Express preemption
Fed statute expressly says it’s exclusive in an area, then state/local laws preempted even if they don’t directly conflict
Implied preemption (even if fed statute silent)
1) if fed/state laws mutually exclusive, fed law preempts; 2) if state law impedes achievement of fed objective, fed law preempts; 3) if Congress evidences clear intent to preempt state law (wholly occupies field) - fed law preempts
Intergovernmental immunity
States may not tax or regulate federal government activity
Dormant Commerce Clause (Negative implication of Commerce Clause)
State/local law unconstitutional if it places undue burden on interstate commerce
Privileges and Immunities Clause of Article IV
No state may deprive other states’ citizens privileges and immunities it gives its own citizens (only applies when state discriminates against out of staters))
Privileges and Immunities Clause of 14th Amendment
Only applies to right to travel
When does a state law discriminate between in state and out of state?
When does not apply the same way to in state and out of state residents
Analysis if state law does not discriminate between in state and out of state
1) Privileges and Immunities of article IV doesn’t apply; 2) If law burdens interstate commerce, it violates dormant commerce clause if burdens exceed benefits
Analysis if state law discriminates between in state and out of state
1) If law burdens interstate commerce then dormant commerce clause violated unless necessary to achieve important government purpose (bop on government, exception of Congressional approval and market participant); 2) If law discriminates against out of staters with regard to ability to earn livelihood (or civil liberties/important economic activities), violates P&I clause of Article IV, unless necessary to achieve important government purpose. Corps/aliens can’t use P&I clause.
State taxation of interstate commerce
1) may not use tax systems to help in state business; 2) may only tax activities if substantial nexus to state; 3) state taxation of interstate commerce must be fairly apportioned (i.e., fairly connected to in state activity)
Full faith and credit
courts in one state must give full faith and credit to judgments of courts in another state so long as: 1) rendering court had jx; 2) on merits; 3) final
Congress’s power under the 13th Amendment
Can be used to prohibit private race discrimination
Applying Constitutional norms to private conduct
13th Amendment to prohibit private race discrimination; commerce power (e.g., Ollie’s BBQ); canNOT use section 5 of 14th Amendment to regulate private behavior
Situations where private conduct must comply with Constitution
1) Private entity is performing a task traditionally, exclusively done by government (public function exception); 2) government affirmatively authorizes, encourages, or facilitates unconstitutional activity (entanglement; ex - courts can’t enforce racially restrictive covenants; government leases premises to restaurant that racially discriminates; state provides books to schools that racially discriminate; private entity regulates sports within a state; no state action where: private school funded < 99% by government fires teacher based on speech; NCAA orders suspension of basketball coach at state university; private club with liquor license from state that racially discriminates)
Application of Bill of Rights
Only applies to fed government
How are the Bill of Rights applied to state/local government?
Incorporation through Due Process Clause of 14th Amendment
Exception to incorporation of bill of rights to states through 14th Amendment
3rd A right to not have soldier in house; 5th A right to grand jury indictment in criminal cases; 7th A right to jury trial in civil cases; 8th A right against excessive fines
Levels of Scrutiny
Rational basis, intermediate, strict
Rational Basis test
bop on plaintiff; law upheld if rationally related to any legitimate governmental interest
Intermediate Scrutiny
bop probably on government; law upheld if substantially related to important governmental purpose (only look at actual purpose); means must be narrowly tailored to meet objective
Strict Scrutiny
bop on government; law upheld if necessary to achieve a compelling governmental purpose (has to be crucia/vital, only look at actual purpose); means must be necessary and narrowly tailored to meet goal…least intrusive means. Government usually loses.
Procedural due process
procedures that govern government action taking away life, liberty, property (what kinds of notice)
Substantive due process
whether government has adequate reason for taking away L/L/P (primarily economic liberty and privacy)
Equal protection
Whether government’s differences in treatment of people is justified
When is there a deprivation of liberty?
Loss of significant freedom provided by Constitution or statute
4 notes about deprivation of liberty
1) except for emergency, before adult institutionalization, need notice and a hearing; 2) when parent institutionalizes a child, need screening by neutral fact finder (e.g., doctor); 3) harm to reputation by itself not loss of liberty; 4) prisoners rarely have liberty rights
