Constitutional Law Flashcards
Judicial Power
Source: Article 3
Limit: Actual cases and controversies
Doctrine: Justiciability, whether lawsuit is capable of judicial resolution as a case or controversy, depends on:
- What it requests (no advisory opinions)
- When it is brought (ripe and not moot) and
- Who brings it (someone with standing)
Additional doctrines limit federal court review: political question, sovereign immunity and abstention.
Special Rules govern Supreme Court Review
Advisory Opinions
Federal Courts may not render advisory opinions which lack,
- An actual dispute between adverse parties
- Any legally binding effect between the parties on the parties
Declaratory Judgments are not advisory opinions
Ripeness
too early
Federal courts may only decide controversies that are ripe for judicial review
Application: a request for pre enforcement review of law are not ripe unless:
- Substantial hardship in absence of review (the more the better) and issues on the record are fit for review (the more legal than factual the better
Mootness
Live if
- For the case of injunctive and declaratory relief challenged law or conduct continues to injure
- For damages plaintiff not made whole from injury
Exceptions: though injury has passed, not moot if:
- Injury is capable of repetition yet evades review because of inherently limited duration
- Defendant voluntarily stops challenged activity but may restart at will or
- In class actions, one plaintiff suffers ongoing Injury
Standing
Plaintiff must have standing to sue which consists of:
A. Injury
B. Causation
C. Redressability
Injury/ Standing
What: almost any harm counts
Ex: Physical, economic, environmental, loss of constitutional or statutory rights
Not: Ideological objections or generalized grievances as citizen or taxpayer
Ex:
- Citizen may not sue to force government to obey laws
- Taxpayer may not sue over how government spends tax reviews
EXCEPTIONS:
- Taxpayer challenge to his or her own tax liability
- Congressional spending in violation of establishment clause
A. Not executive spending
B. Not tax credits for contributions for private (including parochial) tuition
When must injury occur for standing?
injury must have occurred or will imminently occur
- Injunctive or declaratory relief: must show likelihood of future harm
Who must be injured for standing?
injury must be suffered personally by plaintiff rather than those not before court
- No third party standing
Third Party Standing Exceptions
Close Relationship:
1. Plaintiff Injured
2. Third Party unable or unlikely to sue
3. Plaintiff can adequately represent third party
Organizations (on behalf of members):
1. Members have standing
2. Members injury related to purpose of organization
3. Members participation not required (eg not seeking individualized damages)
Free Speech Overbreadth (party whose speech can be censored on behalf of those whose speech cannot):
1. Substantial overbreadth in terms of laws legitimate to illegitimate sweep
2. Not Commercial Speech
Legislative Standing
legislators may challenge acts that injure them personally, rather than the legislature generally
Causation for Standing
Plaintiff must show that injury is fairly traceable to defendant
Ex: no causation where parents of black public school children challenged IRS failure to deny tax breaks to discriminatory private schools, claiming breaks caused public schools to be less integrated
Redressability for Standing
Plaintiff must show that favorable court decision can remedy the harm (ie through money damages or an injunction)
Ex: No redressability where mother challenged states failure to prosecute for nonpayment of child support, claiming loss of child support from lack or prosecution
Political Question Doctrine
Federal Courts will not decide political questions
- Committed by the constitution to the political branches of government or
- Incapable of or inappropriate for judicial resolution
Examples of Political Questions
- Guarantee Clause (article IV, Section 4): challenges to a states government as not a “republican form of government”
- Foreign Affairs: Challenges to President’s conduct of foreign policy and command decisions
- Impeachment Process: Challenges to procedures used by senate to remove officials
- Partisan Gerrymandering: Challenges to drawing election districts on a partisan basis
- Elections and qualifications of members of congress
- Seating of delegates at national political convention
Sovereign Immunity
11th amendment/ Federalism
Barred:
State as defendant where lawsuit is federal and state courts (and agencies)
Exceptions:
State as defendant and
Lawsuit involves-
1. Waiver (Ex: some have waived under tort claim acts)
2. Plaintiff- other states or feds
3. Bankruptcy proceedings
4. Clear abrogation by congress under 14 amendment powers to prevent discrimination
Not barred: Where Defendant is State Officials and Lawsuit involves 1. Injunctive Relief 2. Money damages from own pocket Defendant- Local government Lawsuit: Any
Abstention
- Federal courts may decline to decide a federal constitutional claim that turns on an unsettled question of state law
Ex: Equal protection claim that depends on meaning of ambiguous new state immigration law - Federal courts generally may not enjoin pending state judicial or administrative proceedings
Ex: criminal trial allegedly in violation of Due process
Supreme Court Review
Final Judgment Rule: Supreme Court only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special statutory situations) a three-judge district court
Independent and Adequate State Grounds: Supreme Court will not review a federal question if the state court decision rests on an independent and adequate state law ground
- Independent and Adequate (separate and sufficient) State Grounds exists if outcome would be the same regardless of how the federal question is decided
- If it would be decided the same as state, there is no reason for supreme court to review
Legislative Power
Source: Article 1 of constitution
Limit: Enumerated Powers
- Unlike states, congress has no general police power to pass laws
Exceptions: federal land, Indian reservations, DC
Necessary and Proper Clause
Not a basis of legislative power
Allows congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution
Ex: Article I gives Congress power to raise and support armies but not to hold a bake sale. Nonetheless Congress may choose the means of a bake sale to help raise and support armies
Enumerated Powers
Ex: Citizenship, bankruptcy, federal property, patents and copyright, post offices, coning money, territories and DC, declaring war, raising and supporting armies, providing and maintaining navy
- Taxing and Spending Powers
- Commerce Power
Enumerated Powers/ Taxing and Spending Powers
Congress may tax and spend for to provide for the general welfare (to promote general welfare, not just for general welfare)
- Includes any public purpose not prohibited by constitution, even if not within an enumerated power
Ex: tax on factory carbon emissions (though no enumerated power to regulate environment)
Ex: spending on schools for states following federal educational standards (though no enumerated power to regulate local education)
- Note “Strings” must relate to purpose of spending and not violate constitution
- Have to be related for strings
- Stings must not be so coercive that the state has no choice but to comply (state would have no real choice “bullet to head of states”)
Enumerated Powers/ Commerce Power
Congress may regulate commerce with:
- Foreign Nations
- Indian Tribes
- Among the states
Interstate Commerce
(among the states)
Broadest and most common basis for regulation
- Channels of interstate commerce: highways, waterways, telephone lines, internet
- Instrumentalities of interstate commerce: planes, trains, automobiles, persons in interstate commerce
- Substantial effect on interstate commerce in aggregate (even purely local activities): growing wheat in backyard for home consumption (effect on national commerce)
Exception: non economic activity in area traditionally regulated by states
Delegation of Power to Agencies
may broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power
Ex: Delegation of authority to EPA to regulate air pollutants that “endanger public health or welfare”
Delegation of Power to President
no line item veto
Rationale: Violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to president to sign or veto)
Delegation of Power to Congress
no legislative veto to void duly enacted laws without bicameralism and presentment
Ex: law providing one chamber of congress may overturn agency regulations
Speech and Debate Clause
Members of congress enjoy immunity from civil and criminal liability for legislative acts
Ex: speeches on floor, voting, committee reports
Not: Bribes, speeches and publications outside of congress
Executive Power
Domestic Powers
Enforcement: President has power (and duty) to execute laws
Appointment
- Ambassadors, Federal Judges and officers of the United States (ex: cabinet secretaries)
- President appoints
- Senate gives advice and consent by majority vote
- Inferior Officers
- Congress may vest appointment power in president, department heads or judiciary
- Ex: Undersecretary of State, assistant attorney general, independent counsel
- Congress may not appoint executive branch officials
Removal
- President may remove high-level executive officers (eg cabinet secretaries) at will (president appoints, he can fire at will)
- Congress may limit presidential removal of other executive officials to good cause
- Congress may not remove executive officials except through the impeachment process
Pardon
President may pardon anyone accused or convicted of a federal crime
- Accused means he can pardon prospective people
Exception: no power to pardon crimes underlying impeachment by house of representatives
Does not cover civil liability
Foreign Powers
- War
2. Treaties and Executive Agreements
Foreign Powers/ War
Congress alone has the power to declare war
President as commander in chief has broad discretion to deploy troops internationally to protect American lives and property (eg Vietnam)
- Challenges may be non-justicible as a political question
- Congress checks through power of the purse
Foreign Powers/ Treaties and Executive Agreements
- President negotiates treaties, negotiates executive agreements
- Senate 2/3 vote to approve treaties, not applicable executive agreements
- State law trumps existing and future treaties, trumps existing and future executive agreements
- Federal law trumps existing (not future) treaties, federal law always trumps executive agreements
Impeachment
Congress may impeach the president, vice-president, referral judges, and all officers of the United States for treason, bribery, other high crimes and misdemeanors
Process:
- House passes articles of impeachment by majority vote
- Senate convicts by 2/3 vote
- Removal requires both
Presidential Immunity and Executive Privileges
- Absolute Immunity from civil damages fro any actions arguably within official responsibilities
- No Immunity from private suits (even while in office for conduct prior to taking office
- Executive Privilege protects confidentiality of presidential communications
- Privilege may yield if outweighed by other important government interest
Ex: need for evidence in criminal trial
Federalism
Federalism
10th amendment: powers not granted to United States or prohibited to the states are reserved to the states or the people
1. General police powers: reserved to states
2. Anti-Commandeering principle: Congress cannot compel states to enact or administer federal programs
Supremacy Clause
- Supremacy Clause of Article VI makes federal law preempt inconsistent state and local news
- Federal Law: Constitution, statutes, regulations, treaties, executive agreements
Preemption
Express: Congress expressly says so
Implied conflict: impossible to follow both federal and state law. State law impedes federal law
Implied field: extensive federal regulation indicates congressional intent to occupy the field
Dormant Commerce Clause
Dormant Commerce Clause: Prohibits state laws that discriminate against or unduly burden interstate commerce
Privileges and Immunities of Article IV
prohibits state laws that discriminate against out of state united states citizens re:
- An important commercial activity (livelihood)
- Fundamental Rights
Privileges and Immunities of 14 Amendment
prohibits state laws that interfere with
- Interstate Travel
- Right to petition the government
- Not protect the bill of rights (rights)
Dormant Commerce Clause vs Privileges and Immunities of Article IV
Dormant Commerce Clause:
Who is protected: all out of staters (including aliens and corporations)
What protected: interstate commerce
How protected:
- Discriminatory laws (favoring in state over out of state commerce are invalid unless:
- Necessary to achieve important government purpose (unrelated to economic protectionism and
- No less discriminatory alternatives
- Non-discriminatory laws (evenly applied to in-state and out of state commerce) are valid unless burden on interstate commerce clearly outweighs non-protectionist benefits
Exceptions: Congressional approval and market participant (state acting as buyer as seller)
Privileges and Immunities of Article IV
Who protected: US Citizens (not aliens or corporations)
What protected: important commercial activities and fundamental rights
How Protected:
- Discriminatory laws (favoring in state over out of state citizens) are invalid unless:
- Necessary to achieve important government purpose (unrelated to economic protectionism) and
- No Less discriminatory alternatives
Exceptions: None
Dormant Commerce clause and Privileges and Immunity of Article IV are mutually reinforcing rather than mutually exclusive restrictions on state discrimination against out of stators
- State law can violate both, one or the other, or none
State Taxation of Interstate Commerce
State Taxation of Interstate Commerce
Like state regulation of interstate commerce, subject to commerce clause challenge
Discriminatory Taxes: Generally Invalid
Non-Discriminatory Taxes: Generally ok if
1. Substantial nexis (relationship) between taxpayer and state and
2. Fairly apportioned to business done or benefits received in state
Federal Immunity
States may not tax or regulate the federal government (including agents and activities) without its consent
Ex: state may not required contractor to obtain state license to build facilities on federal air force base, nor assess property tax on base
Fundamental Right to Interstate Travel (Privileges and Immunity of 14th Amendment)
Fundamental right to interstate travel
- State to state travel
- Right enter/leave a state
- Equal treatment once become permanent resident of state
Ex: California could not limit first year residents to welfare benefits they would have received in prior state of residence
- No fundamental right to international travel
Right to Petition federal government
Individual Rights
Application and Incorporation
Except 13th amendment ban on slavery constitution applies only to state action not private conduct
Bill of Rights originally applied only to federal government
Most protections have been incorporated against states (and their political subdivisions) through the 14th amendment
- Not (yet) 3rd amendment right not to have soldiers quartered in home, 5th amendment right to grand jury indictment, 7th amendment right to jury in civil cases, 8th amendment right against excessive fines
State Action
Easy Examples
- State law
- State officials acting officially (even if unlawfully)
Harder Cases:
1. Public Function
State action exists when private party performs function done by government
- Traditionally and Exclusively
State Involvement
Significant state involvement in challenged private conduct (eg assistance, encouragement, supervision, entwinement, or approval) may count as state action
Procedural Due Process
- 5th amendment Due process clause applies to federal government
- 14th amendment Due process Clause applies to states (and localities)
Individual has right to a fair process when government acts to deprive life, liberty, or property
Was there a deprivation of life, liberty property?
Deprivation: Intentional (or perhaps reckless) rather than negligent
Liberty / Procedural Due Process
- Physical Freedom
- Constitutional and statutory rights
Ex: termination of parental rights, revocation of drivers license
Not: mere harm to reputation
Property/ Procedural Due Process
- Real and Personal, tangible and intangible
- Government entitlement to which an individual has a reasonable expectation of continued receipt
Ex: Welfare benefits, public education, government licenses, tenured employment or term employment for duration of term
Not: At Will employment
If deprived what process was due?
A. Notice
B. Opportunity to be heard
C. Neutral decision maker
Notice/ Procedural Due Process
reasonably calculated to inform person of deprivation
Hearing:
- Predeprevation hearing required unless government shows highly impracticable
Post Deprivation Examples:
- Emergency Institutionalization
- Suspension of drivers license after failed breathalyzer
Balancing Test: determines nature and extent of procedures, considering
- Importance of interest to individual
- Risk of error through procedures used
- Accuracy gain from additional procedures
- Burden on government (eg inefficiency and costs)
Examples:
Termination of parental rights: requires notice, hearing, proof of neglect or misconduct by clear and convincing evidence
Detention of Citizen as Enemy combatant: requires meaningful opportunity to contest factual basis for detention, considering burden on executive in wartime
Neutral Decisionmaker
no actual or serious risk of bias
Supreme court often employs levels of scrutiny when laws are challenged as violations of:
- Equal Protection Clause
- Substantive Due Process
- Free Speech
Rational Basis
legitimate interest rationally related
- Burden on challenger, presumption that it is valid
- Government almost always wins
Intermediate Scrutiny
Important state interest substantially related
- Burden on state, presumption none