Constitutional Law (MBE/MEE) Flashcards
Judicial Power: Scope
Limited to power to review cases and controversies
Eleventh Amendment: States
Prohibits states from being sued for money damages in federal court for violating state law, unless:
(1) State consents to the suit, or
* Federal government is permitted to sue states
(2) Congress chose to abrogate that sovereign immunity through an enumerated power
* Congressional intent to abrogate must be clear
* Must be exercising power under Civil War amendments, i.e., 13th, 14th, 15As
Eleventh Amendment: State Officials
- Bars suits in federal court against state officials for violating state law
- Can generally seek injunctive relief against state officers for violating federal law, but federal courts cannot enjoin state judges or law clerks
- Can seek money damages from a state officer by suing the state officer in her personal capacity. Damages from the state treasury are barred.
Compact Clause
- Compact clause requires states to obtain Congress’s consent for agreements between states that increases political power of compacting states at expense of federal government
- Otherwise, states may generally enter into agreements with each other (i.e., interestate compacts) without permission from the federal government
Supreme Court Original Jurisdiction
- “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
Supreme Court Original Jurisdiction: District Court Concurrent Jurisdiction
Congress has granted SCOTUS exclusive jurisdiction over controversies between two or more states, which occur when states seek redress for injuries directly caused by other states. Congress has denied SCOTUS exclusive jurisdiction over all other cases within its original jurisdiction by granting lower federal courts concurrent jurisdiction over:
* Cases involving foreign ambassadors, public ministers, or consuls
* Cases between the United States and a state and
* Cases between a state and citizens of another state or noncitizens.
Supreme Court Appellate Jurisdiction
Two types:
* By certiorari (discretionary): Only four justices must agree to grant cert (“rule of 4”)
* Direct appeal (mandatory)
Supreme Court Appellate Jurisdiction: AISG
A final state-court judgment resting upon adequate and independent state grounds is not reviewable by Supreme Court.
AISG doctrine applies if the case:
* (i) Is in U.S. Supreme Court;
* (ii) Arises through a writ of cert; and
* (iii) Has already been decided by a state court;
* (iv) Adequate: State law controls decision, regardless of how federal issue would be decided
* (iv) Independent: State court’s ruling does not depend on an interpretation of federal law
Note: Although final state-court judgment that rests on AISG may not be reviewed, Supreme Court may constitutionally review a state court decision to determine whether such grounds exist.
Standing: Requirements
P must establish:
* Injury in fact: Concrete and particularized; actual or imminent
* Causation: Injury caused by D’s violation of constitutional or other federal right
* Redressability: Relief requested must be likely to prevent or redress injury
* “Prudential standing”: P is a proper party to invoke judicial resolution of dispute
Standing: Taxpayer Status
Generally no standing to challenge government allocation of funds, but a taxpayer has standing to:
* Litigate how much is owed on her tax bill; and
* Challenge government expenditures as violating the Establishment Clause
Standing: Third-party standing
Generally no standing to bring lawsuit based on claims of third party, but exceptions include:
* Special relationship between P and 3P (e.g., doctor, school, parent, bartender),
* 3P unable to assert his own rights; or
* Risk that disallowing 3P standing will dilute 3P’s rights
Standing: Organizational Standing
Organization has standing to sue on its own behalf or on behalf of its members if:
* Its individual members would have standing to sue in their own right;
* Claim is related to purpose of organization; and
* Individual members are not necessary to adjudicate claim
Standing: Legislatative Standing
- Legislators lack standing to challenge laws they voted against
- The legislature may have institutional standing if claim has something to do with its institutional functions
Standing: Section 1983 Claims
- Provides a method to enforce substantive rights granted by Constitution and other federal laws
- Color of state law: P must show that the alleged deprivation was committed by a person acting “under color of state law” (identical to “state action”)
- Proper Ds: Individual government employees at any level of government, in their individual capacities, including municipalities and local governments
Timeliness: Ripiness
- P must have experienced a real injury (or imminent threat thereof)
- Action brought too soon is “unripe”
Example: If an ambiguous law has a long history of non-enfrocement, case challenging that law may not be “ripe”
Note: Doctrine of ripeness matters at each stage of review, not just when the complaint is filed.
Timeliness: Mootness
Must be a live controversy at each stage of review. A case is not moot if:
* Controvesy is “capable of repetition” but “evading review”;
* D voluntarily ceases its illegal/wrongful action upon commencement of litigation (unless D could not reasonably resume the action, i.e., by passing a law granting relief)
* Collateral legal consequences can be imposed based on challenged conviction
* Named P’s claim in a class action suit is resolved
Note: Doctrine of mootness matters at each stage of review, not just when the complaint is filed.
Mootness: Capable of Repitition Yet Evading Review
A case will not be dismissed as moot if:
* A person will be subjected to same action over and over again; and
* Action will not last long enough to work its way through the judicial system.
Justiciability: Advisory Opinions
- Advisory opinion states opinion of Supreme Court upon a legal question submitted by a legislature, government official, or another court
- No advisory opinions: An actual case or controversy must exist
Justiciability: Declaratory Judgments
- Declaratory judgments are a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court
- Not prohibited, but challenged action must pose “real and immediate danger” to a party’s interests
Justiciability: Political Questions
Political questions are not subject to judicial review when:
* (i) Constitution has assigned decision-making on this subject to a different branch of the government, or
* (ii) Matter is inherently not one that the judiciary can decide
Absention
A federal court may abstain from deciding a claim when strong state interests are at stake. There are four kinds of abstention:
* Pullman: Unsettled law
* Younger: Pending criminal case
* Burford: Complex state regulatory scheme
* Colorado River: Simultaneous similar state/federal cases
Commerce Clause: Interstate Commerce
The power to regulate:
(i) the channels of interstate commerce,
(ii) the instrumentalities of interstate commerce, and
(iii) any activity that substantially affects interstate commerce
Note: Congress cannot mandate that individuals not engaged in commercial activities engage in commerce.
Commerce Clause: Substantial Economic Effect
- Economic activity is presumed to have a substantial effect.
- Aggregation: Even if an instrastate activity has no direct economic imapct on interstate commerce, Congress can regulate as long as there is a rational basis for concluding the total incidence of the activity in the aggregate substantially affects interstate commerce
Commerce Clause: Noneconomic Activity
- Noneconomic activity cannot be aggregated
- To regulate intrastate, noneconomic activity that involves area of traditional state concern, noneconomic activity itself must have a substantial impact on interstate commerce
Taxing Clause: Taxing
- Tax by Congress will be upheld if it is (i) apportioned evenly among the states based on population and (ii) rationally related to revenue production
- Congress has plenary power to impose taxes to raise revenue (i.e., any public purpose) through General Welfare Clause
Taxing Clause: Spending
Congress has the power to spend for the general welfare (i.e., any public purpose), including conditional funding, but 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 be coercive
Congressional Power: Noncitizens and Citizenship
- Noncitizens: Congress has plenary power over noncitizens (subject to Due Process Clause for a noncitizen within U.S.) (ex. Congress can refuse entry to country for reasons such as political beliefs)
- Naturalization: Congress has exclusive authority over naturalization, but may not revoke U.S. citizenship without consent unless citizenship was obtained in fraud or bad faith.
Congressional Power: 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 federal power
Congressional Power: 13th Amendment
- Power to adopt legislation rationally related to eliminating slavery and racial discrimination
- Only amendment that authorized Congress to regulate purely private conduct
Congressional Power: 14th Amendment
- Section 5: 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 constitutional right defined by courts and means of enforcement. If enforcement is so broad it effectively expands the right, enforcement is unconstitutional under Section 5.
Congressional Power: 15th Amendment
- Prohibits both state and federal governments from denying any citizen the right to vote based on race, color, or previous condition of servitude
- Right to vote: Right to have vote meaningfully counted
- Congress cannot treat states differently and thereby impinge on their “equal sovereignty” unless different treatment is rationally justified by current circumstances
Presidential Powers: Pardon Power
- President can pardon for federal offenses at any time after commission of the offense
- Does not apply to state crimes or impeachment
Presidential Power: Veto Power
President has 10 days to act on proposed legislation and may:
* Sign bill: It becomes law;
* Veto bill: By sending it back with objections to the house in which it originated; Congress can override veto by 2/3 vote in each house
* Do nothing: If Congress in session, bill becomes law without president’s signature. If Congress adjourned, bill does not become law (pocket veto, cannot be overriden).
Note: President cannot exercise a line-item veto whereby he vetos some parts of legislation but not others.
Presidential Power: Appointment
- President appoints all “officers of the United States” with the advice and consent of the Senate
- Only federal employees who exercise significant authority must be appointed consistent with appointment clause
- Inferior officers: Can be appointed by department head, President, or court
- Congress: Cannot appoint officers
Presidential Power: Removal
- Generally accepted that president may remove any executive appointee without cause (and without Senate approval)
- Congress may pass a law that creates an agency and protects the head of that agency from being fired by the President (i.e., an independent agency), but Congress cannot create multiple layers of removal protection.
Presidential Power: Commander in Chief
- Congress: Only Congress may declare war and may limit the president’s military activities through exercise of its military appropriation power
- President: Can take military action without a declaration of war in the case of actual hostilities against the US
Presidential Power: Treaties
- President has exclusive power to negotiate treaties
- Treaty may only be ratified by two-thirds Senate approval
- Treaty cannot conflict with Constitution
- Treaty that is not self-executing is not treated as federal law under Supremacy Clause unless it has been implemented through legislation
Presidential Powers: Executive Agreements
- President has power to enter into executive agreements with foreign nations
- Senate approval not required
- Because agreements do not become law, not binding on successor presidents
Separation of Powers: Impoundment
- Congress may pass a statute and give the President discretion to withhold funds
- If a statute requires that certain funds be spent on certain purposes, the President has no discretion to withhold (i.e., impound) the money
Separation of Powers: Legislative Veto
Congress cannot reserve for itself the right to veto an executive action through a legislative veto
Separation of Powers: Delegation of Legislative Power
- Nondelegation doctrine: 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: Impeachment power, power to declare war
Separation of Powers: Judicial Immunity
- Absolute immunity from civil liability for damages resulting from judicial acts in which judge had jurisdiction
- No immunity regarding nonjudicial activities (e.g., hiring and firing court employees)
Separation of Powers: Legislative Immunity
No civil or criminal liability for statements and conduct made in the regular course of the legislative process by members of Congress
* Immunity will not protect statements made outside of Congress (ex. republication of defamatory statement, even if that statement was originally made in the Senate)
Note: State legislators are also immune from civil liability for actions within sphere of legitimate legislative activities, but not for criminal liability
Congressional Power to Investigate
- Congress does not have express power to investigate, but Necessary and Proper Clause allows Congress rboad authority to conduct investigations incident to power to legislate
- While a subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt, witness is entitled to procedural due process rights, including presence of counsel
Separation of Powers: Executive Immunity
Civil: President is immune from civil liability for official acts, but not immune for acts done:
* In President’s private capacity; or
* Before becoming President
Criminal: President is not immune from compliance with a subpoena in federal or state criminal proceedings.
Separation of Powers: Executive Privilege
- Official duties: President has an executive privilege when the subpoena regards official duties, but privilege can be outweighed by a demonstrated need (e.g., ongoing criminal prosecution)
- Personal matters: When the subpoena involves personal matters, it is at the court’s discretion and subject to restrictions
Federal Immunity
- States lacks power to regulate federal government, unless permitted by Congress or not inconsistent with federal policy (ex. can’t make federal post office in state pay its employees state $15 minimum wage rather than federal minimum wage of $7.25)
- Federal government and its instrumentalities are immune from taxation, unless by generally applicable indirect taxes that do not unreasonably burden federal government (e.g., taxing income of federal employees)
Federal Immunity from Taxation: Affiliates
State can tax federal government’s affiliates, including persons or entities employed by or doing business with federal government, even if cost of tax is ultimately passed onto government. Affiliate must pay taxes unless:
* Congress granted affiliate immunity;
* Tax discriminates against federal government or affiliate; or
* Tax substantially interferes with affiliate’s ability to accomplish its federal purpose or duties
State Immunity
- Federal government has virtually unlimited power to regulate states as long as it is exercising one of its enumerated powers
- Anti-commandeering principle: Cannot “commandeer” state legislatures by commanding them to enact or enforce a federal regulatory program
Dormant Commerce Clause: General Rule
If Congress has not, the states can regulate interstate commerce so long as the regulation does not:
* (i) Discriminate against out-of-state commerce;
* (ii) Unduly burden interestate commerce; or
* (iii) Purposefully regulate wholly out-of-state activity
Discrimination Against Out-Of-State Commerce: Exceptions
- Necessary to an important state interest: Regulation may be upheld if: (i) an important local interest being served; and (ii) no other nondiscriminatory means are available to achieve that purpose
- Market-participant exception: State is acting as a market participant as a buyer/seller (not regulator)
- Traditional government function: State or local government entities are performing a traditional government function
- Congressionally permitted discrimination: Congress authorized state regulation of commerce
Note: Even if Congress permits conduct that would violate DCC, states must comply with other constitutional protections (e.g., equal protection clause)
Dormant Commerce Clause: 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 Interstate Commerce
State can tax interstate commerce only if:
* Congress is silent;
* Tax does not discriminate against or unduly burden interstate commerce (no direct commercial advantage to local businesses)
* Substantial nexus between taxing state and property/activity to be taxed; and
* Fair apportionment of tax liability among the states
State Taxation of Foreign Commerce
In addition to meeting same requirements as tax on insterstate commerce, state tax on foreign commerce must not
* (i) create a substantial risk of international multiple taxation or
* (ii) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues
State Taxation of Interstate Commerce: Ad Volorem Property Taxes
- States can tax movable commodities that are within borders on specific date, but cannot tax goods merely in transit between states
- May tax instrumentalities of commerce if instrumentality has a taxable situs or sufficient contacts with the taxing state
