Constitutional Law MBE Flashcards
Source of Judicial Power
Article III requires the establishment of a Supreme Court and permits Congress to create other federal courts and place limitations on their jurisdiction
Scope of Judicial Power
- Limited to cases and controversies (partial list):
o Arising under the Constitution, laws, and treaties of the United States;
o When the United States is a party;
o Between two or more states, or between a state and citizens of another state;
o Between citizens of different states or between citizens of the same state claiming lands under grants of different states; or
o Between a state, or its citizens, and foreign states, citizens, or subjects. - Although not enumerated in the Constitution, the judiciary has the power to review:
o Another branch’s act and declare it unconstitutional;
o The constitutionality of a decision by a state’s highest court; and
o State actions under the Supremacy Clause to ensure conformity with the Constitution.
Limitations of Judicial Power 11th Amendment
- Jurisdictional bar prohibiting citizens of one state from suing another state in federal court; immunizes states (not local government) from suits in federal court for money damages or equitable relief
- Sovereign immunity also bars citizens from suing their own state without the state’s consent in that state’s courts, courts of other states, or federal court
- Bars suits in federal court against state officials for violating state law
- Exceptions to application of 11th Amendment:
o Consent
o Injunctive or declaratory relief
o Damages paid by state officer
o Congressional enforcement of 13th, 14th, and 15th Amendment rights
o Structural waivers in the original constitution
Jurisdiction of the Supreme Court
- Original
* “All cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party”
* Congress cannot expand or limit this jurisdiction - Appellate
* By certiorari (discretionary) and direct appeal (mandatory)
* A final state-court judgment resting upon adequate and independent state grounds is not reviewable by Supreme Court
Standing - General rule
- General rule—the plaintiff (P) must establish:
o Injury in fact—concrete and particularized; injury need not be physical or economic; future injury must be actual or imminent
o Causation—injury caused by the defendant’s (D’s) violation of a constitutional or other federal right
o Redressability—relief requested must be likely to prevent or redress the injury
o “Prudential standing”—P is a proper party to invoke judicial resolution of the dispute
Standing - Taxpayer Status
—generally no standing to challenge government allocation of funds, but a taxpayer has standing to:
o Litigate how much is owed on her tax bill; and
o Challenge government expenditures as violating the Establishment Clause.
Third-party standing
generally no standing to bring a lawsuit based on the claims of a third party, but exceptions include:
o When there is a special relationship between P and the third party;
o When the third party is unable to assert his own rights; or
o When there is a risk that disallowing third party standing will dilute the third party’s rights.
Organizational standing
an organization can sue on its own behalf or on behalf of its members if:
o Its members would have standing to sue in their own right; and
o The interests at stake are germane to the organization’s purpose.
Section 1983 Claims
Section 1983 does not provide any substantive rights; it provides a method to enforce the substantive rights granted by the Constitution and other federal laws
o Proper Ds—individual government employees at any level of government, in their individual capacities; incudes municipalities and local governments
o Color of state law—P must show that the alleged deprivation was committed by a person acting “under color of state law” (functional identical to “state action”)
Timeliness of Judicial Review
- Ripeness—P must have experienced a real injury (or imminent threat thereof); an action brought too soon is “unripe”
- Mootness—must be a live controversy at each stage of review; an action brought too late is “moot”; a case is not moot if:
o Controversy is “capable of repetition” but is “evading review,” i.e., it will not last long enough to work through the judicial system
o D voluntarily ceases its illegal or wrongful action upon commencement of litigation
o Collateral legal consequences can be imposed based on the challenged conviction
o Named P’s claim in a class action suit is resolved (i.e., that fact does not render the entire class action moot)
Justiciability
- Advisory opinions—no advisory opinions; an actual case or controversy must exist
- Declaratory judgments—not prohibited, but the challenged action must pose “real and immediate danger” to a party’s interests
- Political questions—not subject to judicial review when: (i) the Constitution has assigned decision-making on this subject to a different branch of the government; or (ii) the matter is inherently not one that the judiciary can decide
Abstention
—a federal court may abstain from deciding a claim when strong state interests are at stake
Commerce Powers of Congress
- Interstate commerce
* The power to regulate: (i) the channels and (ii) the instrumentalities of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce
* Construed broadly—but does not give Congress the power to mandate that individuals not engaged in commercial activities engage in commerce - Substantial economic effect
* The power to regulate any activity or combination of activities that has a substantial economic effect on interstate commerce
* Aggregation—even if an intrastate activity has no direct economic impact on interstate commerce, Congress can regulate as long as there is a rational basis for concluding that the “total incidence” of activity in the aggregate substantially affects interstate commerce - Noneconomic activity—to regulate intrastate, noneconomic activity that involves an area of traditional state concern, the noneconomic activity must have a substantial economic effect on interstate commerce
Taxation and Spending Power of Congress
- Taxing
* Tax by Congress will be upheld if it has reasonable relationship to revenue production
* Congress has plenary power to impose taxes to raise revenue (i.e., any public purpose) through General Welfare Clause - Spending—Congress has the power to spend for the general welfare (i.e., any public purpose), including conditional federal funding
War and Defense Powers of Congress
—power to declare war, raise and support armies, provide and maintain a navy, etc.
- Provide for the national defense—in both wartime and peacetime (e.g., military draft and selective service)
- Military courts and tribunals—to try enemy soldiers, enemy civilians, and current members of the U.S. armed forces; no jurisdiction over U.S. civilians; not all constitutional protections apply (e.g., right to jury trial or grand jury indictment)
- National guard—power to authorize the president to call National Guard units to execute federal laws, suppress insurrections, and repel invasions; constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances (but limited by statute)
Property Power of Congress
no express limit on power to dispose of US property; however, Congress may only take private property for public use with just compensation and to effectuate an enumerated power
Congressional Power over noncitizens and citizenship
- Noncitizens—Congress has plenary power over noncitizens (subject to Due Process Clause for a noncitizen within the US)
- Naturalization—Congress has exclusive authority over naturalization
Necessary and Proper Clause
Congress has the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government; not an independent source of power
Congressional Power to enforce the 13th, 14th, and 15th Amendments
- Ban on slavery (13th)—power to adopt legislation rationally related to eliminating racial discrimination; the only amendment that authorizes Congress to regulate purely private conduct
- Equal protection and due process (14th)—permits Congress to pass legislation to enforce equal protection and due process rights (but not to expand those rights or create new ones); must be “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end
- Voting (15th)—prohibits both the state and federal governments from denying any citizen the right to vote based on race, color, or previous condition of servitude; Congress cannot treat states differently and thereby impinge on their “equal sovereignty” unless the different treatment is rationally justified by current circumstances
Domestic Power of the President
- Pardon power for federal offenses (i.e., not state crimes)—a pardon may be granted at any time after commission of the offense
- Veto power—the president has 10 days to act on proposed legislation; the president may:
* Sign the bill—it becomes law;
* Veto the bill—by sending it back, with objections, to the house in which it originated; Congress can override the veto by two-thirds vote in each house
* Do nothing—result depends on whether Congress is in session at the end of the 10day period
o Congress in session—bill becomes law without the president’s signature
o Congress adjourned—bill does not become law (pocket veto; cannot be overridden) - Appointment and removal of officials
* Appointment—the president appoints all “officers of the United States,” with the advice and consent of the Senate
* Removal—generally accepted that the president may remove any executive appointee without cause (and without Senate approval) - Authority as chief executive—the president’s authority varies with the degree of congressional authorization of the action
- Duty to faithfully execute laws—the “Take Care Clause” imposes duty on the president to faithfully execute laws, even when the president disagrees
- Emoluments clauses—prohibit a sitting president from receiving a change in compensation or receiving compensation from state, federal, or foreign governments
Foreign affairs power of the president
- Commander-in-chief
* Only Congress can declare war, but the president can take military action without a declaration of war in the case of actual hostilities against the US
* Congress may limit the president’s military activities through exercise of its military appropriation power - Treaties—the president has the exclusive power to negotiate treaties; a treaty may only be ratified by approval of two-thirds vote of Senators present
- Executive agreements—the president has the power to enter into executive agreements with foreign nations; Senate approval not required
Congressional limits on the executive
- Impeachment—the House of Representatives may impeach (i.e., bring charges) by a majority vote; the Senate tries the impeached official (two-thirds vote is necessary for conviction)
- Appropriation—if Congress explicitly mandates expenditure of funds, the president cannot impound those funds (e.g., refuse to spend them)
- Legislative veto—it is unconstitutional for Congress to attempt a legislative veto of an executive action
Delegation of legislative power
delegation of some of Congress’s authority to the executive branch is constitutional if Congress specifies an “intelligible principle” to guide the delegate (nondelegable powers include impeachment power, power to declare war)
Judicial Limitation of Congressional Power
Congress cannot reinstate the right to bring a legal action after the judgment in the action is final
Immunities and Privileges
- Judicial—a judge has absolute immunity from civil liability for damages resulting from judicial acts (no immunity regarding nonjudicial activities, e.g., hiring and firing court employees)
- Legislative—no civil or criminal liability for statements and conduct made in the regular course of the legislative process by members of Congress
- Executive
* Executive privilege—a qualified privilege with respect to the disclosure of confidential information by the executive branch to the judiciary or Congress
- Executive immunity
o The president may not be sued for civil damages with regard to any acts performed as part of the president’s official responsibilities
o Civil action—no immunity from a civil action based on conduct alleged to have occurred before the president took office or completely unrelated to carrying out his job; the president may be subject to such a suit even while in office
o Criminal proceedings—no immunity from compliance with a subpoena in federal or state proceedings
o Congressional subpoena—executive privilege when the subpoena regards official duties; when the subpoena involves personal matters it is at the court’s discretion and subject to restrictions
Federal and State Powers
A. Exclusive federal powers—include the powers to coin money, enter into treaties, declare war, and the power over citizenship
B. Exclusive state powers—broad interpretation of the Commerce Clause and the spending power limit the states’ exclusive powers
gC. Concurrent federal and state laws—under the Supremacy Clause, federal law supersedes conflicting state law
Federal Immunity
a state lacks the power to regulate the federal government (unless permitted by Congress or not inconsistent with federal policy); the federal government and its instrumentalities are immune from taxation by the states (unless by generally applicable indirect taxes that do not unreasonably burden the federal government)
State Immunity
- Federal regulation—the federal government has virtually unlimited power to regulate the states
* As long as Congress is exercising one of its enumerated powers, Congress generally may regulate the states
* Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation (or prohibiting a state from enacting new laws)
* Limitation on conditional funding—condition must (i) be for the “general welfare,” (ii) be unambiguous, (iii) relate to federal interest in particular national projects or programs, (iv) not induce states to act unconstitutionally, and (v) not exceed the point at which “pressure turns into compulsion” - Federal taxation—the federal government may tax a state, but states have partial immunity from direct federal taxation that would unduly interfere with the performance of the states’ “sovereign functions of government”
Dormant Commerce Clause
- General rule—if Congress has not, the states can regulate interstate commerce so long as the regulation does not:
* Discriminate against out-of-state commerce;
* Unduly burden interstate commerce; or
* Purposefully regulate wholly out-of-state activity. - Discrimination against out-of-state commerce—protecting local economic interests at the expense of out-of-state competitors
- Necessary to an important state interest—a discriminatory state or local regulation may be upheld if: (i) an important local interest being served; and (ii) no other nondiscriminatory means are available to achieve that purpose; rarely upheld
o Not discriminatory merely because the entire burden of a regulation falls on out-ofstate businesses - Market-participant exception
o A state can favor local commerce or discriminate against nonresident commerce like a private business, if the state is acting as a buyer or seller (i.e., not as a market regulator) o This exception does not apply to challenges pursuant to the Privileges and Immunities Clause of Article IV - Traditional government function—state and local regulations can favor state and local government entities (but not private entities) if the entities are performing a traditional government function (e.g., waste disposal)
- Congressionally permitted discrimination—must be unmistakably clear that Congress intended to permit the otherwise impermissible state regulation
- Undue burden on interstate commerce
* A nondiscriminatory state regulation may still be struck down if it imposes an undue burden on interstate commerce
* Balancing test—purpose of state law against burden on interstate commerce and evaluate whether there are less restrictive alternatives
State Taxation of Commerce
- Interstate commerce
* General rule—states may tax interstate commerce only if Congress has not already acted in the particular area and the tax does not discriminate against or unduly burden interstate commerce
* Four-part test:
o Substantial nexus—between the activity being taxed and the taxing state;
o Fair apportionment—such that interstate commerce does not pay total taxes greater than local commerce;
o Nondiscrimination—no direct commercial advantage to local businesses over interstate competitors (even if neutral on its face); and
o Fair relationship—the tax must be fairly related to the services provided by the taxing state. - Foreign commerce—states must have congressional consent to impose import or export taxes (except what is absolutely necessary for executing its inspection laws)
