Con Law Flashcards
Justiciability Doctrines
Standing
Ripeness
Mootness
No political Questions
Standing
I. Injury
II. Causation and Redressability
III. No 3P Standing
IV. No generalized grievances
Standing: Injury
Only personally suffered
Likelihood of future harm for injunctive or declaratory relief
Note: “best standing” will usually end up personal economic loss on the bar
Standing: Causation and Redressability
Likely to remedy injury, favorable ruling would remedy issue suffered
Standing: No third party standing
A plaintiff cannot assert claims of others, of third parties, who are not before the court.
i. Exception: third party standing is allowed if there is a close relationship between the plaintiff and the injured third party
ii. Exception: third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights
iii. Exception: an organization may sue for its members, if
the members would have standing to sue;
the interests are germane to the organization’s purpose;
neither the claim nor relief requires participation of individual members
Standing: No generalized grievances
The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law.
Exception: taxpayers have standing to challenge government expenditures pursuant to federal (or state and local) statutes as violating the Establishment Clause
Ripeness
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
Tip: Ripeness always comes up in a request for declaratory judgment
Pre enforcement:
The hardship that will be suffered without pre-enforcement review and
fitness of the record (Court has all it needs to resolve the issue)
Mootness
If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot.
Exceptions
Wrong capable of repetition but evading review
Voluntary cessation. If the defendant voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot.
Class Actions, so long as one member of the class has an ongoing injury
No Political Questions
Examples:
Republican form of government clause, always means nonjusticiable political question
Challenges to the President’s conduct of foreign policy
Challenges to the impeachment and removal process
Challenges to partisan gerrymandering
Writ of Certiorari
a. All cases from state courts come to the Supreme Court by writ of certiorari
b. All cases from United States courts of appeals come to the Supreme Court by writ of certiorari
c. Appeals exist for decisions of three-judge federal district courts
Note terminology. Supreme Court is obligated to take.
Tip: Three-judge federal district court on federal statute, and appeal requested, then Supreme Court required to hear the case
d. The Supreme Court has original and exclusive jurisdiction for suits between state governments
Final Judgment Rule
SCOTUS can hear a case only after a final judgment
Generally no interlocutory review
Independent and Adequate State Grounds
No SCOTUS review if decision is supported by independent and adequate state grounds
If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it.
State law gets last word on state law issues
The principle of sovereign immunity
i) The Eleventh Amendment bars suits against states in federal court
ii) Sovereign immunity bars suits against states in state courts or federal agencies
The principle of sovereign immunity: Exceptions
Explicit Waiver (consent, no implied)
States may be sued pursuant to federal laws adopted under section 5 of the Fourteenth Amendment.
Congress cannot authorize suits against states under other constitutional provisions.
The federal government may sue state governments.
“Plan of the Convention”
Bankruptcy proceedings
power to raise and army and a navy.
Suits against state officers generally allowed (governor, ag)
state officers may be sued for injunctive relief
state officers may be sued for money damages to be paid out of their own pockets
state officers may not be sued if it is the state treasury that will be paying retroactive damages
If officer is personally liable, the suit can go forward even if the state’s going to indemnify
—BUT if treasury legally liable, won’t go forward
Abstention
Federal court has jdx but declines
Federal courts cannot enjoin pending state court proceedings
Congress’ Authority to Act
- There must be express or implied Congressional power
- The necessary and proper clause
- The taxing/spending power and the commerce power
- The Tenth Amendment as a limit on Congressional powers.
- Section 5 of the 14th Amendment
Congress’ Authority to Act: There must be express or implied Congressional power
No federal police power
Except:
Military
Indian tribes/lands
Federal lands or territories
D.C.
Congress’ Authority to Act: The taxing/spending power and the commerce power
a. Congress may tax and spend for the general welfare
b. The Commerce Power
i) Congress may regulate the channels of interstate commerce
ii) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
iii) Congress may regulate economic activities that have a substantial effect on interstate commerce.
(In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.)
Also, five justices have said that Congress cannot regulate inactivity.
Congress’ Authority to Act: The Tenth Amendment as a limit on Congressional powers
The Tenth Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
Anti-Commandeering Principle: Congress cannot compel state regulatory or legislative action.
Exception:
Congress can induce state government action by putting strings on grants, so long as
i. the conditions are expressly stated and
ii. relate to the purpose of the spending program
iii. cannot be unduly coercive.
Congress may prohibit harmful commercial activity by state governments.
Congress’ Authority to Act: Section 5 of the 14th Amendment
Congress may legislate to enforce 14th amendment
Can’t create new rights or expand the scope of rights
Laws must be narrowly tailored: Proportional and congruent to wrongs
Delegation of Powers
No constitutional limit on delegation
Major questions need clear direction from Congress
Violation invalidates agency action (doesn’t invalidate statute)
Legislative vetos and line-item vetos are unconstitutional.
Congress may not delegate executive power to itself or its officers.
Legislative Veto
Must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto). The President must sign or veto the bill in its entirety.
Without these two it’s a Legislative veto = unconstitutional
Line-item veto
President attempts to veto part of the bill = unconstitutional
Treaties
Treaties are agreements between the United States and a foreign country that President negotiates, Senate ratifies
State laws that conflict with treaties are invalid
Treaty vs Federal Law
Last-in-time rule decides which controls
Cannot violate Constitution
Executive Agreements
An executive agreement is an agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation.
No Senate ratification required
Executive agreements can be used for any purpose.
Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.
Recognition power
It is unconstitutional for Congress by statute to designate the capital of a foreign country.
The President has broad discretion in determining whether to admit individuals to the United States.
The President has broad powers as Commander-in-Chief to use American troops in foreign countries.
Appointment Power
President appoints ambassadors, federal judges, and officers of the US
—Senate must confirm appointments
Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts
—Inferior is one who is not head honcho I think
Congress may not give itself or its officers the appointment power
—Look for new federal agency and granted own appt power
The President may not make recess appointments during intrasession recesses that are less than 10 days
Removal Power
Unless removal is limited by statute, the President may fire any executive branch officer.
For Congress to limit removal,
i. it must be an office where independence from the President is desirable and
ii. Congress cannot prohibit removal, it can limit removal to where there is good cause and
iii. it cannot be a single person who heads an agency and exercises substantial discretion
Can limit removal for multi-member body
Impeachment and removal
The President, the Vice President, federal judges and officers of the United States can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors
Impeachment does not remove a person from office
Impeachment by the House of Representatives requires a majority vote; conviction in the Senate requires a 2/3 vote
Presidential Immunities and privileges: Civil Lawsuits
The President has absolute immunity to civil suits for money damages for any actions while in office.
Exception: the President does not have immunity for actions that occurred prior to taking office
Presidential Immunities and privileges: Papers and Conversations
The President has executive privilege for presidential papers and conversations,
but such privilege must yield to other important government interests
Presidential Immunities and privileges: Financial Records
The President has no immunity to keep his financial records from being subpoenaed by a state grand jury,
Exception: if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests
Pardon Power
The President has the power to pardon those accused or convicted of federal crimes
Not state law crimes
Criminal liability only
not civil liability
Express Preemption
Federal statute expressly says federal law is exclusive in a field
Anytime Congress has authority, can say it’s preempted
Implied Preemption
Even if statute silent on preemption, still can be found if:
Laws are mutually exclusive
Can go stricter than federal government unless restricted (ie pollution laws on private actors)
State law impedes a federal objective
If Congress evidences a clear intent to preempt state law, federal law preempts state law
Ie. immigration law
Preemption: Inter-governmental immunities
States may not tax or regulate federal government activity
“Power to tax is the power to destroy”
Unconstitutional to pay state tax out of the federal treasury
State can’t regulate government if it puts a substantial burden on federal activity
Ie. can’t apply pollution control laws to fed gov
Dormant Commerce Clause
State or local law is unconstitutional if it places an undue burden on interstate commerce
Look to actor to see difference between DCC and CC (congress act = CC)
Also known as Negative Implications of the Commerce Clause
Privileges and Immunities Clause of Article IV
Limits states’ ability to discriminate against out-of-staters with regard to privilege and immunities of citizenship
Only applies to states discriminating against out of staters
Privileges and Immunities Clause of the 14th Amendment
Limited to right to travel
Ie. welfare reduction to mover law unconstitutional
Out-of-Staters Approach: Burdens on commerce
No:
P&I doesn’t apply
Violates DCC if it burdens interstate commerce and burdens exceed benefits
Yes:
Violates DCC unless necessary to achieve compelling gov purpose
No less discriminatory means would suffice
Exceptions:
Congressional approval
Market participant
Ie. university restricts
Supports residents who have long been paying taxes to support program
Government owned businesses can discriminate
Out-of-Staters Approach: Earn a livelihood
Law violates P&I IV unless necessary to achieve an important government purpose
P&I IV only applies to discrimination against out of staters
Involves fundamental rights or important economic activity
Remember, usually to earn a living not a hobby
Plaintiffs cannot be corporations or aliens
If corporation, only use DCC in answer
State Taxation of Interstate Commerce
States can’t use tax systems to favor in-state businesses
Need substantial nexus to state to tax it
Physical presence not required
State taxation of interstate businesses must be fairly apportioned
Congress’ authority to regulate private action
The Thirteenth Amendment can be used to prohibit private race discrimination
—-Congress can eradicate the badges and incidents of slavery
—-Note, 13th doesn’t prohibit race discrimination but allows Congress to adopt laws which prohibit private race discrimination
The commerce power can be used to apply constitutional norms to private conduct
—-Ollie’s BBQ case, most of its supplies came across state lines
—-And all restaurants as a whole, discrimination has substantial economic affect
Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior
—-Incorporation doctrine
—-Applies only to state and local governments, not private conduct
The public function exception
situations where private conduct must comply with the Constitution
The Constitution applies if a private entity is performing a task traditionally exclusively done by the government.
Ex. primaries for elections; company town allowing free speech
Narrow exception, ex. Private utilities not applicable
The entanglement exception
The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
Key examples:
i) Courts cannot enforce racially restrictive covenants.
ii) There is state action when the government leases premises to a restaurant that racially discriminates.
iii) There is state action when a state provides books to schools that racially discriminate.
iv) There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech.
Differentiate from iii with encouragement
Government subsidy is not enough by itself for state action
v) There is no state action when the NCAA orders the suspension of a basketball coach at a state university.
vi) There is state action when a private entity regulates interscholastic sports within a state.
vii) There is not state action when a private club with a liquor license from the state racially discriminates
Application of the Bill of Rights
- The Bill of Rights applies directly only to the federal government
- The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment.
Except:
a. The Third Amendment right to not have a soldier quartered in a person’s home.
b. The Fifth Amendment right to grand jury indictment in criminal cases.
c. The Seventh Amendment right to jury trial in civil cases
Rational Basis Test
Constitutional if rationally related to a legitimate government purpose
Any conceivable legitimate purpose
Government usually wins
Burden of proof on challenger
