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Flashcards in Con Law - Bar Prep Deck (40)
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Judicial Power (Overview)

Art. III - Limited by "Actual Cases and Controversies" (Doctrine of Justiciability: What it requests [no advisory opinions]; When it is brought [ripe and not moot]; and Who brings it [person must have standing].

*NOTE: Federal court review limited by: Political Question, SI, and abstention


"What" - No Advisory Opinions

1) Actual Dispute (two adverse people on ea. side of the "v")
2) Legally binding effect of the decision

*Declaratory judgments are binding --> Check for mootness/ripeness


"When" - Ripeness & Mootness:

Ripe = Too early - Pre-enforcmenet review of laws (declamatory judgment actions) are generally not ripe unless: (1) Substantial hardship in advance of review, and (2) issues and record are fit for review (Abbot Labs)

Mootness = Too late - Federal courts may only decide "live" controversies (P is suffering ongoing injury).

(1) In a suit for declaratory and injunctive relief, challenged law or conduce that continues to injure
(2) In a suit for damages, P not made "whole" (i.e. there has been no settlement)

EXCEPTIONS (i..e NOT moot):
1) Injury is capable of repetition yet evades review bc of limited duration (abortion)
2) Defendant voluntarily stops challenged activity, but may restart at will, OR
3) In class action only ONE P suffers ongoing injury


Examples and Exceptions of Standing:

Examples (ideological objections or generalized grievances as a citizen or TP):
- Citizen may not sue to force government to obey laws
- TP may not sue over hoe gov. spends tax resources
- Official proponents of ballot initiative may not defend enacted measures

- TP challenge on their OWN TP liability
- Congressional spending in violation of the Est. Clause (NOT executive spending)


Third Party Exceptions to Standing

The injury must be personally suffered by P, rather than those not before the court -- No third party standing unless:

Close realtionship ( P injured, 3P not likely or unable to bring suit, P can adequately represent)

Associational/Organizational Standing (Members have standing, Germane to interest of the org, Members' participation not required)

Free Speech Overbreadth (party who's speech can be censored sues on behalf of those whose speech cannot): (Substantial overbreadth in terms of laws' legit to illegitimate sweep; not commercial speech).


Legislative Standing

Legislators may challenge acts that injure them personally (nullifies your vote) rather than the legislature generally (line item)


Political Questions Doctrine

Federal courts won't decide a political question (committed by the Constitution to the political branches of government, or incapable of, or inappropriate for judicial resolution)

- Guarantee Clause (challenges to "republican form of gov')
- Foreign Affairs (challenges to Pres's conduct of foreign policy and command decisions)
- Impeachment Process (challenges to procedures used)
- Partisan Gerrymandering (challenges to drawing election districts on partisan basis)
- Qualifications of Members of Congress (judged instead by fellow members of Congress)
- Seating of Delegates at national convention


Exceptions to SI

Barred unless:
1) Waiver
2) P is another state or the federal gov.
3) Bankruptcy proceedings
4) Clear abrogation by Congress under 14th Amendment to prevent discrimination

Not barred:

State Actors/Officers
1) Injunctive relief
2) Money damages from own pocket

Local Governments
(Sames as above)


Independent and Adequate State Grounds (IASG):

SC will not review a federal question if the state court decision rests on an independent or separate (not based on federal case interpretations that could change) and adequate or sufficient (fully dispositive of the case) state law grounds.

* IASG exists if the outcome would be the same regardless of how the federal question is decided


Legislature/Congress Enumerated Powers

Federal Property
Patents and Copyright
Post Offices
Coining Money
Territories and DC (General PO powers - federal land, indian reservations, D.C.)
Declaring War
Raising and Supporting Armies
Providing and Maintaining Navy


Congress may regulate commerce with _____

1) Foreign Nations
2) Indian Tribes
3) Among States***


Interstate Commerce Includes:

1) Channels of IC: Hwys, waterways, telephone lines, internet

2) Instrumentalities of IC: Planes, trains, cars, persons in interstate commerce

3) Substantial Effect (on IC in aggregate - even purely local activities): If everyone grew their own wheat

1) Non economic activity in the area traditionally regulated by states
2) Compel participation in commerce (even if lack of participation substantially effects IC).
3) 14A Enforcement Power: Congress may seek to prevent and remedy state discrimination under its 14A power to enforce equal protection (Congress can authorize suits against the state governments for employment discrimination (example)).



President negotiates; 2/3 senate must approve; trumps existing and future state laws; trumps existing federal laws (but not future)


Executive Agreements

President negotiates; no senate approval needed; trumps existing and future state laws; no effect on federal law


Preemption (In General)

Express - Congress says so
1. It's impossible to follow both state and federal law; or state law impedes federal law
2. The federal government didn't expressly say but the heavily regulated area makes it clear that Congress intends to "occupy the field."

* States can be "tougher than the rest (i.e. fed laws)"


Dormant Commerce Clause

States cannot make laws that discriminate or unduly burden IC.
- All out of staters are protected (including corp. and aliens)

TEST: Discriminatory laws: favoring in state vs. out of state commerce are presumptively invalid UNLESS:
1) They are necessary to achieve an important government function (unrelated to the economy) and
2) There are no less discriminatory alternatives

EXCEPTIONS: Congress gives states approval or the state is a market participant (the state is buying or selling)

TEST: Non Discriminatory laws (evenly applied to in state and out of state commerce) are usually okay unless the burden on IC clearly outweighs the non-protectionest benefits

cf. - Privileges and Immunities of Art. IV - mutually reinforcing


Privileges and Immunities of Art. IV

Prohibits state laws that discriminate against out of state citizens re:
- Important commercial activities (jobs/livelihood)
- Fundamental rights
- US Citizens are protected (not corp or aliens)

TEST: Discriminatory laws favoring in state v. out of state citizens are invalid UNLESS:
1) Necessary to achieve important gov. purpose and
2) No less discriminatory alternative

cf. The DCC - mutually reinforcing


Privileges and Immunities of 14A

Prohibits state laws that interfere with
- Interstate travel (right to leave or enter a state & not be treated as a second class citizen)
- Petitioning the federal gov.
*NOT the Bill of Rights (actually the DP clause)


CC and Taxes

Discriminatory - Invalid
Non- Discriminatory - Valid UNLESS
1) Substantial nexus between TP and state AND
2) Fair apportionment to business done or benefits received in state


Procedural DP:

5th A - DPC applies to the feds
14A - DPC applies to states and localities

Indv. has a right to fair process when gov. acts deprive of life, liberty, or property


Levels of Scrutiny (Tests/When is it used?)

Used when laws are challenged as violations of equal protection, SDP, and free speech

Rational Basis - Gov. must show a legitimate interest; that is is rationally related to the interest; the challenger has the burden; the presumption is that it is valid

Intermediate Scrutiny: Gov. must show important state interest; that it is substantially related; the burden is on the state; and there is no presumption (state must fight for it)

Strict Scrutiny: Gov. must show a compelling state interest (highest interest); that the rule etc. is narrowly tailored (in the least restrictive means to advance their need); the burden is on the state and the presumption is that it is invalid (gov. almost always loses).


Equal Protection (In general)

14A - Applies to states and all localities
5A - DPC has "equal protection component" that applies to the federal government (MBE - if the fed. gov is violating the answer is not the 5A EPA, it's the "component" or the 5th A DPC).

- Triggered by people being treated differently:

- What's the classification (race, gender, equality, etc.)?
- What's the level of review (class determines)?


EP: Classifications and Levels of Scrutiny:

Quasi - Suspect:

Intermediate Scrutiny
- Gender
- Illegetimacy (wedlock)
- Undocumented alien children by stated (assumed - SC has not yet stated)


EP: Classifications and Levels of Scrutiny:


Strict Scrutiny
- Race
- National Origin
- Alienage classification by STATE generally (cf. RB for the same related to democratic governance) or (by Congress)
- Denial of fundamental rights to some (Ex. Smokers)


How do you determine EP classification

- Facially
- Need disparate impact + discriminatory intent


SDP - Overview

Unenumerated Rights = Substantive component of liberty protected by 14A (DPC against states and localities); 5A (DPC against federal government)

Fundamental right (if it's a "new right" it must incorporate this language): Right is deeply rooted in nations history and tradition or is implicit in the concept of ordered liberty
- SS standard
- Non-Fund Right = RB

DPC and/or EP:
1) Denying EVERYONE a fundamental right = SDP only
2) Denying some people a right - SDP (fund DP bc of right) AND EP (some people being discriminated against.


Fundamental Rights

- Marriage/Divorce
- Procreation/Contraception (Abortion --> Undue Burden Scrutiny Test)
- Custody, care, and upbringing of children
- Living with extended family
- Interstate travel
- Vote (RB applied to reasonable requirements that protect rather than hinder voting but SS for onerous or potentially discriminatory restrictions)
* Apply SS


Non- Fundamental Rights (examples)

- Economic Rights
- Physician assisted suicide
- Education
* Apply RB


Unspecified Rights (could be more)

- Private consensual adult sex
- Refuse medical treatment
- Bear arms
*Default = RB



Fundamental Right - Use Undue Burden Test:

Pre-Viability: State my require (but not prohibit) abortions to protect mother's health or life of fetus

Post-Viability: NO TEST: State my PROHIBIT abortions unless necessary to protect mother's life or health