Quick Con Law Flashcards
What is the Source, Limit, and Doctrine of Judicial power?
Source: Article 3 of Constitution
Limit: Only Actual Cases and Controversies
Doctrine: Judiciability (whether lawsuit is capable of judicial resolution depends on
what: no advisory opinions (actual dispute between adverse parties w/legally binding effect)
when: ripe and not moot
who: someone with standing
Additional doctrines limit fed court review: political question, sovreign immunity, and abstention.
What are the mootness exceptions?
though injury has passed, not moot if:
1) injury is capable of repetiiton (ie pregnant woman challenging abortion restriction delivers)
2) D voluntarily challeneged activity, but may restart at will (ie strip club that city sought to close closes and owner retires)
3) in lawsuit, one plaintiff suffers ongoing injury
Plaintiff must have standing to sue, what does standing consist of?
Injury ( injury must be personally suffered by Plaintiff [unless close relationship or organization] (ALL taxpayers have standing to challenge the way tax dollars are spent) +
causation (P must show that injury is fairyl traceable to D) +
redressability ( P must show that favorable court decision can remedy the harm)
fed courts will ALWAYS decide political questions. What is the rule and what are examples of political questions?
1) committed by the Constitution to the political branches of gov
2) incapable of, or innapropriate for, judicial resolution
Examples:
a) the guarantee clause
b) foreign policy and war challenges to Pres conduct of foreign policy and command
c) Impeachment process
d) Partisan gerrymandering
e) qualifications on members of congress
seating of delegates
f) seating of delegates
What is abstention?
Fed courts generally decline to decide a federal constitutional claim that turns on an unsettled question of State Law
Fed courts generally may not enjoin pending state court proceedings
What is the Source and limit of legislative power?
Source: Art I Section 8 Limit: Enumerated Powers -citizenship -bankruptcy -fed property -patents and copyrights -post offices -coining money -territories and DC -declaring war -raising and supporting armies -providing and maintaining navy
(no general police powers except with federal land, indian reservations and DC)
What is the Neccesary and Proper Clause
Allows Congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by constitution
What are Congress’ taxing and spending powers?
Congress may tax and spend to provide for the GENERAL WELFARE - includes ANY public purpose even if not within an enumerated power (tax on failure to purchase health insurance OK)
Spending Conditions: (congress may require that entities who accept gov money act in a certain manner)
- “Strings” must relate to purpose of spending and not violate Constitution.
(a) examples - cannot condition school spending on highway speed limits; highway spending on educational standards; or any spending on suppression of government criticism. - Strings CANNOT be unduly coercive.
(a) example - withholding current Medicaid funding (10% of state budgets) if state refuses to participate in new Medicaid expansion under health care law.
What is the rule, basis for regulation and limitations for Commerce Power
Rule - Congress may regulate commerce with:
- foreign nations
- indian tribes; AND
- among the states.
Basis for Regulation:
- Channels of interstate commerce - highways, waterways, telephone lines, Internet
- Intrumentalities of interstate commerce - planes, trains, automobiles, persons in interstate commerce
- Substantial Effect on interstate commerce (even purely local activities) - growing wheat in backyard for home consumption.
Limitations:
- Non-economic activity in area traditionally regulated by states
- CANNOT compel participation in commerce (even if lack of participation substantially affects interstate commerce)
What are Congress delegation of powers?
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 EP to regulate air pollutants that “endanger public health or welfare.”
To President - CANNOT delegate legislative power
To Congress - CANNOT delegate legislative veto to void duly enacted laws without bicameralism and presentment.
- Ex.: law providing one chamber of Congress may overturn agency regulations.
What is the speech and debate clause say?
Speech or Debate Clause Rule - members of Congress enjoy immunity from civil and criminal liability for “legislative acts.”
Examples - speeches on floor, voting, committee reports
NOT - bribes, Tweets, town halls, speeches and publications outside of Congress
What is the source of executive power and president’s enforcement powers?
Source: Article 2`
Enforcement: PResident has power and duty to enforce or faithfully execute laws
What are the presidents Appointment powers?
President has the power to appoint Ambassadors, federal judges, and officers of the United States.
- Senate gives advice and consent by majority vote.
Recess appointments are permissible for vacancies arising before or during Senate recesses of at least 10 days, and valid until end of next Senate session.
Appointment of inferior officers - Congress may vest appointment power in President, department heads, or judiciary, but NOT Congress.
What are the presidents Removal powers?
President may remove high-level executive officers (e.g., cabinet secretaries) at will.
Congress may limit president removal of other executive officials to good cause.
Congress may NOT remove executive officials EXCEPT through the impeachment process.
What are pres’ pardon powers?
Pardon Rule - President may pardon anyone accused or convicted of a federal crime.
Exception - no power to pardon crimes underlying impeachment by House of Representatives.
Note - pardon does NOT cover civil liability.
What are Pres’ war powers?
Foreign Powers - War Congress alone has power to declare war
President as Commander-In-Chief has broad discretion to deploy troops internationally to protect American lives and property.
Notes:
- Challenges may be non-justiciable as a political question
- Congress checks through power of the purse
What are pres treaty powers?
President negotiates
Need approval by 2/3 of Senate
Treaties trump existing and future state law
Treaties trump existing, but NOT future, federal law
What are Pres Executive Agreement powers?
Executive Agreements President negotiates
Do NOT need approval from Senate
Executive Agreements trump existing and future state law
Federal law ALWAYS trumps Executive Agreements
What is the rule and process for impeachment?
Rule - Congress may impeach the President, Vice President, federal judges, and all officers of the United States for treason, bribery, or other high crimes and misdemeanors.
Process:
- House passes articles of impeachment by majority vote.
- Senate convicts by 2/3 vote.
- Removal requires BOTH.
What is presidential immunity and executive privilege?
President has absolute immunity from civil damages for any actions arguably within official responsibilities
President does NOT have immunity from private suites for conduct prior to taking office.
Executive privilege protects confidentiality of presidential communications.
- Privilege may yield if outweighed by other important government interests, e.g., need for evidence in a criminal trial.
Federalism: What does the 10th amendment say?
10th Amendment - powers not granted to United States, or prohibited to the states, are reserved to the states or the people.
Note - general police powers are reserved to the states.
Anti-Commandeering Principle - Congress cannot compel states to enact or administer federal programs.
Federalism: What does the supremacy clause of Article 6 do?
The Supremacy Clause of Article VI makes federal law “preempt” inconsistent state and local laws.
Preemption:
- Express preemption occurs if Congress expressly says so.
- Two types of implied preemption:
(a) Conflict - occurs when it is either impossible to follow both federal and state law or when state law impedes federal law.
(b) Field - occurs where extensive federal regulation indicates congressional intent to “occupy the field.”
What is the dormant commerce clause?
What are it’s tests, exceptions and who is the proper plaintiff?
Dormant Commerce Clause Prohibits state laws that discriminate against OR unduly burden interstate commerce
Test for Discriminatory Laws - Discriminatory laws (favoring in-state over out-of-state commerce) are “presumptively invalid” UNLESS
- necessary to achieve important government purpose (unrelated to economic protectionism), AND
- no less discriminatory alternatives.
Test for Non-Discriminatory Laws - Non-discriminatory laws (evenly applied to in-state and out-of-state commerce) are “usually ok” UNLESS the burden on interstate commerce “clearly” outweighs non-protectionist benefits.
Exceptions:
- Congressional approval
- Market participant
Proper Plaintiff - All out-of-staters.
What is the privileges or immunities of the 14th amendment?
Prohibits state laws that interfere with:
- interstate travel
- right to enter/leave a state
- equal treatment once you become a permanent resident of the state
- NO fundamental right to international travel - petitioning the government
- NOT the Bill of Rights
What is the Federal Immunity Rule
Federal Immunity Rule - states may not tax or regulate the federal government (including agents and activities, military bases) without its consent.
Example - state may not require contractor to obtain state license to build facilities on federal air force base, nor assess property tax for the base.
What is state action?
Four Types:
- State law
- State officials acting officially (even if unlawfully)
- Public Function: Rule - state action exists when private party performs function done by government “traditionally” and “exclusively.”
- Ex.: Company runs “company town.” - State involvement: - Rule - “significant” state involvement in challenged private conduct.
What are the Procedural Due Process requirements?
Provisions:
- 5th Amendment Due Process Clause applies to federal government.
- 14th Amendment Due Process Clause applies to states (and localities).
General Rule - individual has a right to a “fair process” when government acts deprive of life, liberty, or property.
What are the meanings of “deprive” “liberty” and “property” for purposes of procedural due process?
Deprivation - intentional (or perhaps reckless) rather than negligent.
Liberty:
- Physical freedom
- Constitutional and statutory rights
Property:
- Real and personal, tangible and intangible.
- Government entitlement to which an individual has a “reasonable expectation” of continued receipt.
What are procedural due process requirements?
Three Requirements:
- Notice
- reasonably calculated to inform person of deprivation - Hearing
- Neutral Decision Maker
- no actual or serious risk of bias
What are the procedural due process hearing requirements?
Hearing A pre-deprivation hearing is required UNLESS government shows highly impracticable.
Balancing Test - determines the 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
What are the supreme courts levels of scrutiny?
Supreme Court often employes levels of scrutiny when laws are challenged as violations of Equal Protection, Substantive Due Process, and Free Speech.
Three Types:
- Rational Basis
- Intermediate Scrutiny
- Strict Scrutiny
What is the SC level of scrutiny for rational basis?
Regulations that do NOT affect fundamental rights or involve suspect or quasi-suspect classifications are reviewed under the rational basis standard.
Rule - the law is upheld if it is “rationally related” to a “legitimate” government purpose.
The person challenging the law has the burden of proof.
Presumption of validity
What is the SC level of scrutiny for intermediate scrutiny?
Regulations involving quasi-suspect classifications (i.e., gender and legitimacy) are reviewed under the intermediate scrutiny standard.
Rule - the law is upheld if it is “substantially related” to an important government purpose.
Burden of proof is on the state
No presumption
What is the SC level of scrutiny for strict scrutiny?
Regulations affecting fundamental rights or involving suspect classifications (i.e., race, national origin and alienage) are reviewed under the strict scrutiny standard.
Rule - The law is upheld if it is “necessary” to achieve a “compelling government purpose.”
Law must be narrowly tailored
Burden of proof is on the state
Presumption of invalidity
What is the Equal Protection Analysis?
5th and 14th Amendments
Steps:
- What is the classification?
- What is the level of review?
Determining Classification:
- Facial
- Disparate impact + discriminatory intent
What is the substantive DP analysis?
Substantive Due Process Analysis *Provisions” - 5th and 14th Amendments
If a fundamental right is at issue, apply strict scrutiny.
If a fundamental right is NOT at issue, apply rational basis.
Due Process and/or Equal Protection:
- Denying everyone a fundamental right is ONLY a due process question.
- Denying some people a fundamental right is BOTH a due process and equal protection question.
What is the Establishment Clause - History and Tradition Test?
Sometimes the Court sets aside the above principles and finds that a state religious display or practice is a “tolerable acknowledgement” of the role religion has played in the “history and tradition” of the nation.
What is the takings clause?
Takings Clause Rule - Federal government (5th Amendment) and states (14th Amendment) may not take private property UNLESS:
- Taking is for a public use AND
- Government pays just compensation
Types of Takings:
- Physical taking
- Regulatory taking - leave “no economically viable” use
What do “public use” and “Just compensation” mean under the takings clause?
Public Use - any “legitimate public purpose,” i.e., any purpose that government reasonably believes will benefit public.
Just compensation - fair market value at time of taking (benefit to government is irrelevant).
Contract Clause
No State shall … pass any … law impairing the Obligation of Contracts.
Test for Private Contracts - substantial impairment of existing rights are invalid unless the legislation:
- serves an important and legitimate public interest AND
- is a reasonable and narrowly tailored means of promoting that interest.
Test for Public Contracts - Heightened scrutiny (intermediate or strict)
What is the Ex Post Facto Laws Rule?
neither state nor federal government may pass legislation that retroactively alters criminal liability.
Notes:
- Cannot criminalize act that was innocent when done.
- Cannot make crime greater than when committed.
- Cannot set punishment greater than when act was done.
- Cannot reduce evidence required to convict from what was required at time of act.
What are Bills of Attainder?
Bills of Attainder Rule - neither state nor federal government may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial.
What is the freedom of speech analysis?
- Is it speech?
- Is the speech protected or unprotected?
- Two Parts:
(a) Content-based or Content-neutral?
(b) General restriction? Public property? Public school? Public Employment? - Is the restriction vague, overbroad, or a prior restraint?
