Con Law Flashcards
(45 cards)
What are the Justiciability doctrines?
Advisory opinions, standing, mootness, ripeness, and political question
Standing
Need to have 3 things
1: Injury in Fact
- A plaintiff Must show a legally protected interest which is concrete and particularized and actual or imminent. (no speculative)
2: Causation
- Injury must be fairly traceable to defendants conduct
3: Redressability
- The injury to the plaintiff that is caused by the defendant must likely be remedied if the court rules in favor of the plaintiff.
Prudential Standing
- Three major rules of prudential standing
1: Zone of interest: Does the plaintiff fall under the protections of the statute
2: Generalized Grievances: Injuries shared generally by many or all citizens
3: Rule against third party standing
- 1: Potential Plaintiffs should be allowed to decide for themselves to assert rights
- 2: Party advocating own rights is going to present a more thorough case
- Exception is
- 1: Close relationship between plaintiff and third party that the rights are inextricably bound
- 2: Genuine obstacles to the third party asserting their own rights. Privacy concerns, fear of retaliation etc
Mootness
A case is not moot when the harm to the plaintiff is continuing or when it is capable of being repeated on the plaintiff or others in the future.
There are 4 exceptions to this rule
1: An otherwise moot case should not be dismissed if it is likely to produce collateral consequences.
2: An otherwise moot case should not be dismissed if the challenged action is, quote, “capable of repetition yet evading review.
3: An otherwise moot case should not be dismissed if the mootness arises from the defendant’s voluntary cessation of the alleged misconduct.
4: In a properly certified class action lawsuit, the fact that the named plaintiff’s claims have become moot does not warrant dismissal of the entire suit.
Ripeness
- Determining whether a case is ripe requires looking at
(1) the hardship on the parties if the court doesn’t take up the matter of withholding court consideration and
(2) the fitness of the issue for judicial decision. - In order to be ripe, the plaintiff must allege that she
(1) already suffered some harm;
(2) is faced with a specific present harm; or
(3) is under a threat of specific future harm.
Political Question Doctrine
As with standing questions, you have to get into the merits and ask: What is the legal right here?
For an issue to be a non-justiciable political question, one of six tests (listed in descending order of importance and certainty) must be satisfied:
(1) Those issues committed by the constitution to another branch of government
(2) The Lack of judicially manageable standard for resolving the issue
(3) Necessity of making an initial policy determination calling for non-judicial discretion
(4) A lack of respect for the other branches of government in undertaking independent resolution of the case;
(5) An unusual need for unquestioning adherence to a political decision already made; or
(6) The potential for embarrassment for differing pronouncements of the issue by different branches of government.
Advisory Opinions
There needs to be an actual dispute amongst the parties and not an abstract opinion about the validity of a law rendered in the absence of a concrete dispute
How to weigh executive powers
1: Executive power is at its “maximum” when, in addition to Article II power, the President can rely on express or implied authority from Congress.
2: When the President acts in absence of either a congressional grant or denial of authority, he can rely only upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which the distribution of authority is uncertain.
3: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb. Because the President in such a situation would be disobeying federal law, such presidential actions would be allowed only if the law enacted by Congress is unconstitutional.
Executive Appointments and Removal
-Principal Officers: Anyone who is nominated by the president and confirmed by the Senate
-Inferior Officers: Officers whose work is directed and supervised by principal officers and is
1: Subject to removal by higher exec branch official ‘
2: Empowered to preform only specific, limited
duties
3: vested with limited jurisdiction
4: Given Limited Tenure
-The president may also appointment inferior officers if the congress so authorizes. The Appointments Clause also allows inter-branch appointments which are appointments by one branch of inferior officers in another branch.
- Removal Power: Supreme Court has held that the president has the exclusive authority to remove federal officers without congressional approval. Congress may impose conditions on the president’s removal such as requiring good cause for removal. These conditions will likely be upheld if it applies to officers which operate with some independence from the president or to inferior officers’ appointment by someone else other than the president. (Note, congress can remove federal officers through impeachment process.) Nonetheless, congress can’t interfere with removal in a manner that excessively subverts the president’s ability to control his subordinates and ensure that the laws are faithfully executed.
Recess Appointments
Recess Appointments
-The constitutions Recess Appointments Clause authorizes the president to fill vacancies when the senate is not in session. Recess appointments have the same effect as senate confirmation, but they last only until the end of the subsequent session of congress.
Treaties
Treaty and Foreign Affairs
-President has power to make treaties with advice and consent of 2/3 of the Senate.
1: President may enter into a treaty with a foreign
nation and
2: Treaty must be ratified by 2/3 Senate vote
President has the ability to rescind treaty without congressional approval. A treaty that violates some provision of the constitution is unenforceable.
Commander and Chief
Suspension of Habeas Corpus
- Suspension of Habeas Corpus
- Suspension clause provides that “privilege of the writ of habeas corpus” cannot be suspended except in case of rebellion or invasion when the public safety may require it.
Necessary and Proper Clause
- The necessary and proper clause grants Congress the power to make all laws necessary and proper (i.e. appropriate) for carrying into execution any power granted to any branch of the federal government.
- Congress cannot adopt a law that is expressly prohibited by another provision of the constitution.
Commerce Power
-Article 1, Section 8, clause 3 empowers congress to “regulate commerce with foreign nations and among the several states and with the Indian tribes.
Congress may regulate only three broad categories of activities:
(1) the channels of interstate commerce
(2) the instrumentalities of, or persons or things in, interstate commerce; and
(3) activities that substantially affect or substantially relate to interstate commerce.
- Basically, includes all activity affecting two or more states
- Can aggregate intrastate activity if there is a rational basis for doing so
- Commerce power is also used to limit the power of individuals over other individuals. Example is baring private racial discrimination in activities “connected with” interstate commerce.
- Congress cannot compel people to take part in interstate commerce.
Tenth Amendment
-All powers not delegated to the federal government by the Constitution are reserved to the states (or for the people).
NY v United States
-Congress may not pass regulations that have the effect of “commandeering” states’ legislative processes. There are two ways Congress may urge a state to adopt a legislative program consistent with federal interests:
(1) as part of its spending powers, Congress may attach conditions on states’ receipt of federal funds, or
(2) where Congress has the authority to regulate private activity under the Commerce Clause, Congress may offer states the choice of regulating that same activity according to federal regulations or having state law preempted by federal regulations.
These options allow states to decline compliance with federal regulatory standards if state citizens decide a federal policy is contrary to local interests. However, the take title provision deprives states of such a choice by requiring them to adopt federal regulations or take title to their waste. Hence, the take title provision does not present states with any option other than implementing the Act. Under the Supremacy Clause, Congress could preempt state radioactive waste regulation. However, Congress violates the Tenth Amendment where it directs states to regulate in that field.
Eleventh Amendment
-Makes states sovereign entities. Can’t be sued without their own consent.
In order to determine whether Congress has abrogated states’ sovereign immunity, two questions must be asked:
(1) whether Congress unequivocally expressed its intent to abrogate such immunity and
(2) whether Congress acted pursuant to a valid exercise of power.
Congress may not abrogate states’ sovereign immunity protected by the Eleventh Amendment unless through an exercise of power derived from §5 of the Fourteenth Amendment.
Taxing and Spending Powers
-Under the taxing and spending clause, Congress can condition funding on state compliance with federal policies, even if congress cannot directly legislate on the issue.
Spending power conditions. Congress can regulate states by imposing conditions on states to receive federal funding. This will not violate the 10th amendment if the conditions are
1: Clearly Stated
2: Relate to the purpose of the program
3: Are not unduly coercive (still allows the states a meaningful choice)
- Limitations on congress spending power
1: Sending must be for the general welfare
2: Conditions must be clear
3: Conditions should be related to the federal government’s interests
4: Conditions must not conflict with other constitutional provisions (independent constitutional bar) An independent constitutional bar prevents congress only from compelling states to act unconstitutionally.
Thirteenth Amendment
- 13th Amendment provides that neither slavery nor involuntary servitude shall exist in the United States
- It is applicable to state and private action
Fourteenth Amendment
- 14th Amendment prohibits states (not fed or private persons) from depriving any person of life, liberty, or property without due process and equal protection of the law. Through the Due Process Clause, most protections of the Bill of Rights are applicable to the states.
- Section 5 of the 14th amendment is an enabling clause that gives congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Under section 5, congress may not expand existing constitutional rights or create new ones, it may only enact laws to prevent or remedy violations or rights already recognized by the courts.
- To adopt a valid law, Congress must
1: point to a pattern of state violation of such rights and
2: adopt legislation that is congruent and proportional (narrowly tailored) to solving the identified violation.
Must be significant relationship between constitutional violation and regulation.
Fifteenth Amendment
15th Amendment is a limitation on both states and the federal government. It prohibits them denying any citizen the right to vote based on account of race or color. The 15th Amendment contains an enabling clause that allows Congress to adopt legislation protecting the right to vote from discrimination.
Shelby County v Holder (outdated law that required any change in voting laws to be approved by fed court or department of justice. Didn’t apply to all states)
A federal law that departs from the fundamental principles of federalism must be justified by current needs.
Preemption
Federal law will always displace or supersede state law if one of three conditions exists
1: Federal law says it has a preemptive effect
2: State law and fed law conflict
3: Fed law has occupied the entire field of regulation, leaving no room for states to act (field preemption)
Express Preemption
-A federal law may expressly provide that the states may not adopt laws concerning the subject matter of the federal legislation. These are narrowly construed.
Implied Preemption
Even if a federal law does not expressly prohibit state action, state laws will nevertheless be held impliedly preempted if
(1) they actually conflict with federal requirements,
(2) prevent achievement of federal objectives,
(3) or congress has preempted the entire field.
- Supreme Court has stated that in all preemption cases (and especially involving a field traditionally within the power of the states, health, safety or welfare) it will start with the presumption that historic state police powers are not to be superseded unless that was a clear and manifest purpose of congress.
Dormant Commerce Clause
Dormant Commerce Clause
-If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the legislation:
A statue is discriminatory in such that it favors an in-state interest over an out of state interest or if it blocks interstate commerce at the states border.
-Under this standard the law will be struck down unless the state can prove that the law serves an important noneconomic state interest and there are no reasonable alternatives available.
If the statute does not discriminate, but places an incidental burden on interstate commerce, apply intermediate scrutiny. The test applied is the pike balancing test.
-A nondiscriminatory law will be invalidated only if the burden on interstate commerce outweighs the promotional of legitimate state or local interests.
Legitimate interests are those related to states police power. The power to provide for the health, safety, and well-being of its citizens. A law is rationally related to an objective if the connection between the law and objective is not arbitrary or clearly unreasonable. Courts will consider
1: Magnitude of the benefit, magnitude of burden, and the extent of the burden on interstate commerce.
2: Local benefits to the state
3: the availability and feasibility of nondiscriminatory alternatives.
