Con Law Flashcards
(37 cards)
justiciable case or controversy subjects (RAMPSE)
ripeness - p not entitled to review of satute or reg before enforcement unless P will suffer some harm or immediate threat of harm
absention - federal court will abstain from resolving a constitutional claim when based on unsettled question of state law
mootness - a real controversy must exist at all stages of review,. If the matter has been resolved, the case will be dismissed as moot UNLESS capable of repitition yet evading review, or voluntary cessation. A rep in a class action may continue even if her claim is moot if at least one other class member has a valid claim.
political question - issues constitutionally committed to another branch of gov or inherently incapable of judicial resolution
- challenges to republican form of government
- challenges to president’s conduct on foreign policy
- challenges to removal or impeachment process
- challenges to partisan gerrymandering
- no advisory opinions
standing - see next
11th amendment - a federal court will not hear a party’s claim against a state government unless the private party sues state officer, the state consents, of Congress removes immunity. However, actions against local governments or state officers for injunctive relief not barred.
standing
P must have a concrete stake in the controversy. To have a concrete standing in the controversy, the plaintiff must show that (1) he has been actually personally injured or is under immediate threat of a personal actual injury, (2) the conduct at issue caused the injury, and (3) the injury may be remedied by court order (redressability).
Organizations may bring suits on behalf of members if (1) all members have standing, (2) there is an interest germane to government’s purpose, and (3) the individual members’ participation isn’t required.
people may not sue on behalf of third party unless a special relationship exists between the person suing and the person who was injured and the person suing also was injured.
when may SC hear a case
Generally, the SC may hear cases only after there has been a final judgment of the highest state court, of a US court of appeals, or of a three-judge federal district court
For the SC to review a state court decision, there must not be an independent and adequate state law ground of decision. If a state court decision rests on two grounds, one state law and one federal law, if the SC’s reversal of the federal law ground will not change the result in the case, the SC cannot hear it.
sovereign immunity clause
Sovereign immunity bars suits against states in state courts or federal agencies
President’s treaty power
Executive Agreements
Treaties are agreements between the US and a foreign country that are negotiated by the President and are effective when ratified by the Senate.
(1) Treaties prevail over conflicting state laws.
(2) If a treaty conflicts with a federal statute, the one adopted last in time controls.
(3) If a treaty conflicts with the Con, it is invalid.
Executive agreements are agreements between the US and a foreign country that is effective when signed by the President and the head of a foreign nation.
(1) Can be used for any purpose. The SC has never said that exec agreements re treaties have exceeded scope of federal executive power.
(2) Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.
President’s military powers
The President also has broad powers as Commander-in-Chief to use American troops in foreign countries. but may not declare war.
what are the executive’s appointment and removal powers?
The president appoints ambassadors, federal judges and officers of the US
- Senate must approve
- Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts
Unless removal is limited by statute, the President may fire any executive branch officer. For Congress to limit removal, (1) there must be good cause, (2) there must be an office where independence from the President is desirable, and (3) it cannot be a single person who heads an agency and exercises substantial discretion.
impeachment/removal
The President, VP, federal judges and officers of the US can be impeached and removed from office for treason, bribery, or for high crimes and misdemeanors.
- Impeachment does not remove a person from office.
- Impeachment by the House of Reps requires a majority vote; conviction in the Senate requires 2/3 vote
pres’s powers as chief exec
(1) if president acts with express or implied Congressional authority, his actions are likely valid
(2) if the President acts where Congress is silent, his action will likely be upheld unless it usurps power of another brand
(3) if president acts agaisnt express congressional will, he has little authority
President + Immunity
President + Executive Privileges
President + Financial Records
President + Pardon Power
The president has absolute immunity to civil suits for money damages for any actions while in office. However, the President does not have immunity for actions that occurred prior to taking office.
President has priv to keep certain communications secret ,particularly regarding national security, but not in criminal proceedings where p shows need.
The President has no immunity to keep his financial records from being subpoenad by a state grand jury, but if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests.
The president has the power to pardon those accused or convicted of federal crimes (not civil).
Congress’s authority to act - where does it come from; what are Congress’s powers - 6
- There must be express or implied Congressional power. Congress doesn’t have police power except if legislating military, Indian reservations, federal lands and territories, and district of Columbia (MILD)
- Congress has power to pass laws necessary and proper for duties and take any action necessary for execution of any power granted to any branch of fed government.
- Commerce Power - Congress has power under the commerce clause to regulate commerce with foreign nations and among the several states, and with the Indian tribes” Commerce is defined as “every species of commercial intercourse with concerns more states than one.” Congress can regulate the channels of interstate commerce, the instrumentalities of interstate commerce and persons/things in interstate commerce, and economic activities that have a substantial effect on interstate commerce. (noneconomic activity - substantial effect cannot be based on cumulative impact).
- Congress has power to tax and spend for general welfare.
- Congress may dispose of and make all needful rules regarding territories and property of the US.
- Citizenship - Congress’s powers are plenary.
- War - declare war.
Limitations on Congress’s power under tenth amendment
The Tenth Amendment states that all powers not granted to the US, nor prohibited to the states, are reserved to the states or the people.
- Congress can’t compel state reg or leg action but CAN induce action by putting strings and conditions on grants so long as:
(1) conditions are expressly stated
(2) relate to purpose of spending program and
(3) the conditions aren’t unduly coercive. - Congress may prohibit harmful commercial activity by state govs
Limitations on Congress’s power under 14th amendment
Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations (narrow tailoring).
preemption - what is it and what are the four kinds
The Supremacy Clause of Article VI provides that the Const and laws and treaties made pursuant to it, are the supreme law of the land
(1) express preemption - if a federal statute expressly states that federal law is exclusive in an area, state and local laws are preempted
(2) implied preemption - if federal and state laws are mutually exclusive, federal law preempts state law.
(3) if state law impedes the achievement of a federal objective, federal law preempts state law
(4) if Congress evidences a clear intent to preempt a field, federal law preempts state law
DCC
States may regulate local aspects of interstate commerce under the negative implications of the commerce clause so long as the local regulation does not conflict with federal law, and meets test.
If the state law discriminates against out-of-state comp, it is invalid unless:
(1) state is market participant
(2) state action involved is traditional gov function
(3) law furthers important noneconomic state interest and there are no nondiscriminatory reasonable alternatives
If the state law doesn’t discriminate,
(1) but the burden on interstate commerce outweighs state’s interest, it is invalid.
(2) and it doesn’t burden interstate commerce, it is valid,
Privileges and immunities clause Article IV
applied to states through 14th amend
no state can deprive citizens of other states the privileges and immunities it accords to its own citizens
If the state law discriminates against out-of-state persons with regard to civil liberties or important economic activities, the gov can show nonresidents are at least part of the problem the gov is attempting to solve and there are no less restrictive means
privileges or immunities clause of 14th amend
states can’t deny citizens rights of national citizenship - used recently to prohibit disc against new residents for violating right to travel
when may state tax out of state business
- A state may only tax activities if there is a substantial nexus to the state. A state may require that out-of-state businesses collect sales taxes, even if they do not have a physical present with the state, so long as they have a substantial nexus to the state.
a. State taxation of interstate businesses must be fairly apportioned.
state action
The constitution applies only to government action. Private conduct need not comply with the Constitution.
- Congress, by statute, may apply constitutional norms to private conduct.
o The Thirteenth Amendment can be used to prohibit private race discrimination
Exceptions:
1. The public function exception. The Constitution applies if a private entity is performing a task traditionally exclusively done by the government. (like running an election)
- The entanglement exception. The Constitution applies if the gov affirmatively authorizes, encourages, or facilitates unconstitutional activity (inconsistent)
(subsidizing not enough)
bill of rights
The bill of rights applies only to the federal government.
The bill of rights applies to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment, except:
- Third Amendment right not o have a soldier quartered in a person’s home.
- Fifth Amendment right to a grand jury indictment in criminal cases.
- Seventh Amendment right to a jury trial in civil cases.
different levels of scrutiny in EPC cases + burdens of proof
- Under rational basis, a law is upheld if it is rationally related to a legitimate conceivable government purpose.
a. Burden of proof: challenger - Under intermediate scrutiny, a law is upheld if it is substantially related to an important government purpose.
a. Burden of proof: government - Under strict scrutiny, a law is upheld if it is necessary to achieve a compelling government purpose.
a. Burden of proof: government
prior restraint - what is it, when is it okay
A prior restraint restricts speech before it occurs, rather than punishes it afterwards. Court orders suppressing speech must meet SS. To be valid as system:
(1) standards must be narrowly drawn, reasonable, and definite and leave almost no discretion to granter
(2) injunction must be promptly sought
(3) there must be prompt and final determination of the validity of the restraint
vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
puts a reasonable person on reasonable notice of what is allowed
overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech that the constitution allows to be regulated.
