Constitutional Law (MBE) Flashcards
Judicial Power: Federal Courts Advisory Opinions
Federal courts CANNOT issue advisory opinions, which are decisions that lack an ACTUAL DISPUTE or any LEGALLY BINDING EFFECT.
Judicial Power: Establishing Ripeness
A plaintiff can establish ripeness by showing: (i) the issues are FIT for a judicial decision, and (ii) the plaintiff would suffer SUBSTANTIAL HARDSHIP in the absence of review.
Judicial Power: Mootness
A LIVE CONTROVERSY must exist at all stages of review or the case will be dismissed.
Judicial Power: Mootness Exceptions
A claim that is not considered to be moot in the following situations: (i) issues capable of repetition, (ii) where the defendant voluntarily stops the offending practice, but is free to resume, and (iii) class actions where the claim of at least one member is still viable.
Judicial Power: Standing
A person has standing where he has: (i) an injury in fact (which must be PARTICULARIZED and CONCRETE), (ii) causation, and (iii) redressability
Judicial Power: Standing - General Citizenship Standing
People have no standing merely as “citizens” or taxpayers, though a taxpayer challenging their own tax bill would.
Judicial Power: Standing - Tenth Amendment
A person MAY have standing to allege the federal action violate the 10th Amendment by interfering with powers reserved to the states if redressable
Judicial Power: Standing - Establishment Clause
People have standing to challenge congressional spending on First Amendment Establishment Clause
Judicial Power: Standing - Third Party Standing
Generally, there is no third-party standing, UNLESS: (i) it is DIFFICULT for the 3rd party to assert their own rights, and (ii) a close relationship exists between the claimant and the third party
Judicial Power: Standing - Organizations
An organization has standing to sue on behalf of its members if: (1) there is an injury in fact to the MEMBERS, (2) the member’s injury is related to the ORGANIZATION’S PURPOSE, and (3) individual member participation in the lawsuit is NOT REQUIRED (i.e., not seeking individual damages).
Judicial Power: Standing - Congressional Conferral of Standing
Congress can’t eliminate the case or controversy requirement and, thus, cannot grant standing to someone who doesn’t have an injury. However, a federal statute may create new interests, injury to which may be sufficient for standing.
Judicial Power: Standing - Enforce Government Statutes
A plaintiff MAY have standing to enforce a federal statute if they are within the ZONE OF INTEREST Congress meant to protect.
Judicial Power: Sovereign Immunity
The 11th Amendment bars a private party’s suit against a state in federal and and state courts or agencies.
Judicial Power: Sovereign Immunity - Exceptions
Exceptions to the sovereign immunity doctrine include: (i) waiver, (ii) local government and entities, (iii) bankruptcy, (iv) state officials to enjoin or seek personal damages, and (v) congress abrogates.
Judicial Power: Abstention
A federal court will abstain from resolving a constitutional law claim when the disposition rests on an unsettled question of state law.
Judicial Power: Abstention - Pending State Proceedings
Federal courts will NOT ENJOIN pending state CRIMINAL proceedings, except in cases of proven harassment or prosecutions taken in bad faith.
Judicial Power: Political Question
Issues CONSTITUTIONALLY COMMITTED to another branch of government or INHERENTLY INCAPABLE of judicial resolution will not be decided by federal courts.
Judicial Power: Political Question - Examples
(1) Challenges based on the “Republican Form of Government” Clause of Article IV (2) challenges to congressional procedures for ratifying CONSTITUTIONAL AMENDMENTS, (3) President’s foreign policy, and (4) political gerrymandering
Judicial Power: Supreme Court - Original Jurisdiction
The SCOUTS has original jurisdiction in ALL CASES affecting ambassadors, public ministers, consuls, those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states.
Judicial Power: Supreme Court - Adequate and Independent State Grounds
The SCOTUS WILL NOT exercise jurisdiction if the state court judgment is based on adequate and independent state grounds.
Legislative Power: Congress Implied Powers
Congress can exercise powers NECESSARY AND PROPER to carry out any of its enumerated powers.
The Necessary and Proper Clause alone CANNOT support federal law, rather it MUST BE COUPLED with another federal power.
Legislative Power: Federal Police Power
Congress HAS NO GENERAL POLICE POWER, except over D.C., federal lands, military bases, and Indian reservations.
Legislative Power: Taxing and Spending Power
Congress has the power to tax and spend to provide for the general welfare FOR ANY PUBLIC PURPOSE.
Non-spending regulations CANNOT be supported by the general welfare clause.
Legislative Power: Spending Power Conditions
Congress can impose CONDITIONS on the grant of money, as long as: (1) they are CLEARLY STATED, (2) RELATE TO THE PURPOSE of the program, and (3) are NOT UNDULY COERCIVE.
Legislative Power: Commerce Power
Congress has the power to regulate all foreign and interstate commerce, as well as commerce within Indian tribes. Interstate commerce means the: (i) CHANNELS, (ii) INSTRUMENTALITIES, or (iii) local activities that have a SUBSTANTIAL EFECT on interstate commerce.
Legislative Power: Commerce Power - Intrastate Activity
The Court will uphold regulation of INTRASTATE commerce if it can think of a RATIONAL BASIS on which Congress could conclude that the activity IN THE AGGREGATE substantially affects interstate commerce.
Legislative Power: Commerce Power - 10th Amendment Limitation
Congress is precluded from regulation NONECONOMIC intrastate activity in areas TRADITIONALLY REGULATED BY STATE GOVERNMENTS
Legislative Power: Commerce Power - Prohibition of Private Discrimination
Congress may PROHIBIT PRIVATE discrimination in activities that may have a substantial effect on interstate commerce.
Legislative Power: War
Congress has the power to declare war, raise and support armies, and provide for and maintain a navy.
Legislative Power: War and Related Powers - Enemy Civilians and Soldiers
Congress can’t deny habeas corpus review to all aliens detained as enemy combatants without a meaningful substitute.
Legislative Power: Investigatory Power - Subpoena of Presidential Information
Congress can subpoena the President’s personal information, so long as it advances a LEGITIMATE LEGISLATIVE PURPOSE, but the Court will balance Congress’s interest in obtaining the information against the burdens on the President.
Legislative Power: Property Power
Congress can dispose and make rules for territories and other properties in the United States.
Legislative Power: Bankruptcy Power
Congress has a NONEXCLUSIVE power to establish uniform rules for bankruptcy
Legislative Power: Postal Power
Congress has an EXCLUSIVE power to classify and place reasonable restrictions on the use of mails, but MAY NOT deprive any citizen or group of citizens of the general mail “privilege”.
Legislative Power: Citizenship - Exclusion of Aliens
Aliens have NO RIGHT to enter the United States and can be refused entry because of their political beliefs. However, RESIDENT ALIENS must get NOTICE AND HEARING before they can be deported.
Legislative Power: Citizenship - Naturalization and Denaturalization
Congress has EXCLUSIVE power over naturalization and denaturalization, but CANNOT take away citizenship without that person’s consent.
Legislative Power: Admiralty Power
Congress has PLENARY and EXCLUSIVE power over admiralty, unless left to state jurisdiction.
Legislative Power: Delegation
Legislative power can generally be delegated to the executive or judicial branch as long as INTELLIGIBLE STANDARDS are set and the power is NOT UNIQUELY CONFINED to Congress
Separation of Powers: Bicameralism and Presentment
Laws without bicameralism and presentment are INVALID.
Separation of Powers: Line Item Vetos
Congress CANNOT delegate to the President the power of the line item veto (i.e., canceling some part of a bill while approving others).
Separation of Powers: Legislative Vetos
Congress CANNOT retain a legislative veto (i.e., where Congress gives itself authority to amend or repeal an existing law without undergoing bicameralism and presentment.
Separation of Powers: Speech or Debate Clause - Immunity for Federal Legislators
Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are IMMUNE from prosecution.
Executive Power: Domestic Powers
(1) Where express or implied authority from Congress, actions are likely VALID, (2) where silent from Congress, relevant history is considered, and (3) where express prohibition from Congress, the action is likely INVALID.
Executive Power: Appointment Powers by President
The President appoints ambassadors, justices of the Supreme Court, and other officers with advice and consent of the Senate.
Executive Power: Appointment Powers by Congress
Congress can vest appointment of INFERIOR OFFICERS to the President, the courts, or the heads of the departments, but NOT members of a body with administrative or enforcement powers.
Executive Power: Removal of Appointees (President v. Congress)
President - The President can remove high level, purely executive officers at will, without any interference by Congress (i.e. Cabinet members) or independent agency heads if a sole director with significant executive power (but Congress can provide statutory limitations on the President’s power to remove other executive appointees)
Congress - Congress can remove executive officers ONLY through IMPEACHMENT PURPOSES
Executive Power: Pardons
The President may grant pardons for all FEDERAL OFFENSES, and cannot be limited by Congress
Executive Power: Veto Power
Acts vetoed by the President may still become law if passed by 2/3 vote of EACH house.
Executive Power: Pocket Veto
The President has 10 days to exercise the veto power, or the Bill is automatically vetoed IF Congress is not in session (if in Session it automatically becomes law).
Executive Power: Power to Call War
The President HAS NO POWER to declare war (only Congress does), but the President can act military in hostilities against the United States
Executive Power: Foreign Relations
The President has paramount power to represent the United States in foreign relations
Executive Power: Treaty Power
The President has the power to enter into treaties with the CONSENT OF 2/3 OF THE SENATE.
Executive Power: Supreme Law
Treaties are the “supreme law of the land,” if they are self-executing, and any state laws that conflict are INVALID.
Executive Power: Treaty Power - Conflict with Federal Laws
LAST IN TIME prevails (i.e., latter law trumps earlier law).
Executive Power: Treaty Power - Conflict with Constitution
Treaties are INFERIOR to the Constitution and MAY NOT be inconsistent
Executive Power: Executive Agreements
Executive Agreements are signed by the President and the head of a foreign country and can be used for the same purpose as treaties. They DO NOT require the consent of the Senate.
Executive Power: Executive Agreements - Conflict with State Law
Executive Agreements PREVAIL OVER state laws.
Executive Power: Executive Agreements - Conflict with Federal Laws
Federal law PREVAILS OVER Executive Agreements.
Executive Power: Executive Privilege
The President has a privilege to keep certain presidential communications a secrete so he can receive candid advice and protect the national security, EXCEPT in CRIMINAL proceedings where need for such information is demonstrated.
Executive Power: Executive Immunity
The President has ABSOLUTE IMMUNITY from civil damages based on ANY ACTION taken while exercising official responsibilities, but not for acts alleged occurring before taking office.
Executive Power: Impeachment
The President, Vice President, and all civil officers of the United States are subject to impeachment on grounds of TREASON, BRIEBERY, AND HIGH CRIMES AND MISDEMEANORS.
A MAJORITY vote in the House is necessary, and a TWO-THIRDS vote in the Senate for conviction.
Judicial Power: Standing - Free-Speech and Overbreadth Claims
A person has standing to bring a free speech claim, even if that person’s own speech WOULD NOT be protected under the First Amendment. (This DOES NOT apply to commercial speech).
Legislative Power: Commerce Power - Intrastate Activity - Compulsion of Inactivity
The Commerce Clause gives Congress the power only to regulate existing commercial activity, it DOES NOT give Congress the power to COMPEL activity.
Federalism: Exclusive State Powers
Under the 10th Amendment, all powers not granted to the federal government or prohibited to the states are reserved to the states or the people.
Federalism: States’ Police Powers
States have GENERAL POLICE POWERS, meaning they can regulate the health, safety, and welfare of their people.
Federalism: Federal Taxation and Regulation of State Governments
Congress CAN subject state government activities to regulation or taxation IF the law applies to BOTH public and private sector (e.g., minimum wage laws).
The 10th Amendment does limit Congress’s power to regulate the states alone by requiring them to act in a particular way, also known as ANTI-COMMANDEERING PRINCIPLE.
Federalism: Federal Taxation and Regulation of State Governments - Exception
Under its 14th Amendment, Congress may restrict states from discriminating in violation of EQUAL PROTECTION or depriving rights protected by due process
Federalism: State Taxation/Regulation of Federal Government
A state MAY NOT DIRECTLY tax federal instrumentalities without Congressional consent, however, NONDISCRIMINATORY INDIRECT TAXES are permissible if they do not UNREASONABLY BURDEN the federal government or deal with federal functions.
Federalism: Supremacy Clause
A federal law (i.e., the Constitution, federal statutes, or regulations, treaties, or executive agreements) may supersede or preempt state law
Federalism: Supremacy Clause - Express Preemption
A federal law MAY expressly state that the states may not adopt laws concerning the subject matter of the federal legislation. These are NARROWLY construed.
Federalism: Supremacy Clause - Implied Preemption
If state law conflicts with federal law such that it would be impossible to follow both laws, the state law will be held to be impliedly preempted.
Federalism: Supremacy Clause - Preemption Presumption
Courts will start with the presumption that the state police powers ARE NOT superseded UNLESS that was the clear and manifest purpose of Congress.
Federalism: Supremacy Clause - Interstate Compact Clause
This concerns agreements BETWEEN STATES. If the agreement increases the states’ power at the expense of federal power, congressional approval is required.
Article IV Privileges and Immunities
Prohibits discrimination by a state AGAINST NONRESIDENTS when the discrimination concerns either: (i) important COMMERCIAL ACTIVITIES, or (ii) FUNDAMENTAL RIGHTS; and only applies if the discrimination is INTENTIONALLY protectionist in nature.
Note, corporations and aliens ARE NOT protected by this clause (but are protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment).
Article IV Privileges and Immunities - Important State Interest Required
If the state law burdens an important commercial activity or fundamental right, it will be invalid UNLESS the law is: (i) NECESSARY TO ACHIEVE AN IMPORTANT GOV’T PURPOSE and (ii) there are NO LESS RESTRICTIVE MEANS available.
Fourteenth Amendment - Privileges of National Citizenship
States MAY NOT deny their citizens the privileges and immunities of NATIONAL citizenship (corporations are not protected here).
Dormant Commerce Clause (State Regulation of Commerce in the Absence of Congressional Action)
If Congress has not enacted laws regarding the subject, a state may regulate local aspects of interstate commerce, so long as the state DOES NOT DISCRIMINATE or UNDULY BURDEN interstate commerce.
Dormant Commerce Clause: Discriminatory Regulations
A discriminatory state law MAY BE VALID if it is necessary to achieve an important, noneconomic state interest and there ARE NO REASONABLE NONDISCRIMINATORY ALTERNATIVES available. (Still, these are ALMOST ALWAYS INVALID.)
Dormant Commerce Clause: Nondiscriminatory Balancing Test
If a nondiscriminatory state law burdens interstate commerce, it will be VALID UNLESS the burden OUTWEIGHS the promotion of a legitimate local interest.
Dormant Commerce Clause: Exceptions
(1) Congressional Approval, (2) State acts as a “Market Participant”, and (3) government performing traditional government functions
21st Amendment: State Control Over Intoxicating Liquor
State governments have wide latitude of importation of liquor and the conditions under which it is sold or used, however, regulations that constitute only an economic preference may violate the Commerce Clause.
Power of States to Tax Interstate Commerce
Congress has complete power to authorize or forbid state taxation that affects interstate commerce.
Power of States to Tax Interstate Commerce: Discriminatory Taxes
Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause
Power of States to Tax Interstate Commerce: Nondiscriminatory Taxes
A nondiscriminatory tax will be valid if: (i) the tax applies to an activity with a SUBSTANTIAL NEXUS to the taxing state (includes business AVAILING ITSELF), (ii) the tax is FAIRLY APPORTIONED, and (iii) the tax must be FAIRLY RELATED to the services provided by the state.
Use Taxes: In Buyer’s State
Use taxes imposed on goods purchased outside the state but used within it ARE VALID.
Use Taxes: Forcing Seller to Collect Use Tax
An interstate seller MAY be required to collect a use tax IF the seller has a SUBSTANTIAL NEXUS with the taxing state.
Taxes: Commodities in Course of Interstate Commerce
Commodities in interstate transit are ENTIRELY EXEMPT from state taxation.
Taxes: Tax on Instrumentalities Used to Transport Goods Interstate
The validity on taxes on instrumentalities of commerce depends on whether: (1) the instrumentality has acquired a “taxable situs” in the taxing state (i.e., received benefits), and (2) the value of the instrumentality has been PROPERTY APPORTIONED.
Taxes: Privilege, License, Franchise, or Occupational Taxes
Generally permitted, may be measured by a flat amount or proportional rate. The following must be met: (i) the activity taxed has a SUBSTANTIAL NEXUS to the taxing state, (ii) the tax must be FAIRLY APPORTIONED, (iii) the tax MUST NOT DISCRIMINATE against interstate commerce, and (iv) the tax must fairly relate to services provided by the state.
Taxes: Power of States to Tax Foreign Commerce
The Import-Export Clause and the Commerce Clause greatly limit the states’ power to tax foreign commerce.
Inter-Sovereign Litigation: Suits by United States Against a State
The united states may sue a state without its consent.
Inter-Sovereign Litigation: Suits by a State Against United States
Public policy forbids a state from suing the United States without its consent or congressional permission.
