Con Law Essay rules Flashcards
(40 cards)
11th Amendment and Justiciability
Citizens of one state cannot sue another state in federal court and cannot sue their own state in federal court
Abrogation: Congress may expressly repeal state immunity if acting to enforce rights under the 13th, 14th, and 15th amendments (civil rights).
Standing
To have standing an individual must have injury in fact; causation; and redressability.
Organizational standing exists when individual members have standing (analyze individual standing); the claim is related to the purpose of the organization; and the individual members are not necessary to adjudicate the claim.
Mootness and Ripeness
Mootness: must have a live controversy not one that has been settled
Ripeness: Injury must have occurred and not be speculative
Commerce Clause
Congress has the power to regulate the channels of commerce (highways, waterways, etc.); instrumentalities of interstate commerce; and activities that have a substantial effect on interstate commerce.
Tenth Amendment
Congress may exercise only those powers specifically enumerated by the Constitution. Under the Tenth Amendment, all powers not assigned by the Constitution to the federal government are reserved to the states. In theory, this gives the states expansive, exclusive power. In practice, however, the federal government has very broad power to regulate the states. As long as Congress is exercising one of its enumerated powers, Congress may regulate the states, within certain limits. However, Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or enforce a federal regulatory program. Congress is also prohibited from conscripting a state executive officer directly.
Spending Power related to conditions of funds among states.
Congress can condition funds to states and require states to implement certain regulations.
Permitted as long as the condition is related to the purpose of the funds. Condition must not be coercive.
Commandeering: state may claim congress is violating the 10th amendment by forcing the state legislature to pass specific legislation but a valid exercise of the spending power is not commandeering.
Example: In South Dakota v. Dole, 483 U.S. 203 (1987), the Court held that Congress could condition a provision of five percent of federal highway funds on the state’s raising its drinking age to 21.
Although Congress cannot command state legislatures, it can encourage state action through the use of the taxing and spending powers. The spending power has been interpreted very broadly, but is subject to five limitations. First, Congress must spend for the “general welfare,” which amounts to any public purpose. Second, the condition must be unambiguous. Third, the condition must relate to “the federal interest in particular national projects or programs.” Fourth, the condition must not induce the states to act in an unconstitutional manner. Finally, the condition may not exceed the point at which “pressure turns to compulsion.”
Substantial effect on interstate commerce
Economic activity is presumed to have a substantial effect.
Aggregation: economic activity occurring within a state can be regulated if, in the aggregate, it has a substantial effect on interstate commerce.
Noneconomic activity can not be regulated.
Delegation of legislative power
Congress may delegate its powers to an agency as long as it provides reasonably intelligible principals.
Executive powers: Issuing executive orders
Domestic affairs: President has appointment and removal powers, the pardon power, the commander in chief power, and the duty to execute the law
Foreign affairs: President has the power to conduct foreign negotiations, to deploy troops overseas, and to make executive agreements.
Supremacy Clause
If State law conflicts with federal law, the federal law governs.
Express Preemption
The federal law explicitly states that it is the only law allowed in that area. Any state law addressing that issue is invalid.
Implied Preemption
Implied when:
Congress passes a federal law intending to occupy the entire field
The state law conflicts directly with the federal law; or
The state law conflicts indirectly with the federal law.
state laws can be more stringent than federal laws as long as they are not conflicting
Privileges and immunities clause
(U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause). Provides that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
Nonresident citizens are protected against discrimination with respect to fundamental rights or essential activities. Examples include the pursuit of employment, transfer of property, and access to state courts.
Prohibits states from discriminating against non-residents. Discrimination against out-of-state citizens may be valid if the state can show:
i) A substantial reason for the difference in treatment; and
ii) That the discrimination practiced against nonresidents bears a substantial relationship to the state’s objective.
Only applies to individual citizens; not corporations or non-citizens.
Example: Discrimination against out-of-state residents in setting the fee for a commercial activity, such as a commercial shrimping license, violates the Privileges and Immunities Clause of Article IV, but similar discrimination for a recreational activity, such as a recreational hunting license, does not, if there is a rational basis for the fee differential. Compare Toomer v. Witsell, 334 U.S. 385 (1948) (fee for out-of-state commercial shrimper that was 100 times greater than the fee for an in-state shrimper unconstitutional), with Baldwin v. Fish & Game Comm’n, 436 U.S. 371 (1978) (fee for out-of-state resident to hunt elk that was 25 times greater than the fee for an in-state hunter constitutional).
10th amendment and Commandeering
All powers not expressly given to the federal government are reserved to the states. Federal government cannot “commandeer” state legislatures and force them to pass legislation.
Arises with the spending power; Feds can condition funds to persuade legislation and its not commandeering if it is a valid exercise of the spending power.
Dormant Commerce Clause
Under, the DCC, a state may not discriminate against out of state commerce (strict scrutiny) or unduly burden interstate commerce (Pike balancing)
DCC Discrimination
Must be discriminatory on its face or by its impact. If it is discriminatory the state must show: It has an important state interest and there is no other discriminatory means available to achieve that interest (necessary).
Market Participation Exception: If a state is acting as a buyer or seller then it can favor local business.
DCC Unduly Burdening Interstate Commerce
If a statute is not discriminatory, the law may still be invalid if it causes an “undue burden” on interstate commerce. A court will balance:
1) the purpose of the statute and its benefits ;
2) the burden on interstate commerce
3) Whether there are less restrictive means
State action vs private actions
The constitution protects against wrongful conduct by state actors, not private entities.
A private entity may be treated as a state actor and subject to the constitution when:
Carrying out an act or activity traditionally performed by government; or
Intertwined with the state actor
Takings Clause
5th amendment: Government may not take private property for public use without just compensation
Includes physically taking the land; regulatory takings by prohibiting development; and permanent physical occupations
Usually deals with private real property but can involve patents rights or trade secrets
Public use for takings
Must be rationally related to a conceivable public purpose;
Includes health, safety, economic development
Types of takings
Physical
Regulatory: a total taking occurs if the regulations leaves no economically viable use of the property;
Partial regulatory taking occurs when the reg affects some economic use of the land, but there is still some benefit.
Look at the economic impact, the reasonable expectations of the owner’s return on investment, and the character of the regulation (does it affect everyone or only a few). The more value lost the more likely it constitutes a partial taking.
Exactions under takings analysis
Local governments may exact promises from a developer in exchange for construction permits.
Not a taking if there is an essential nexus between the legitimate state interest and the conditions imposed; AND a rough proportionality between the burden on the owner and the impact on the community.
Just compensation for takings
The fair market value at the time of the taking.
If only a portion has been taken the owner is entitled to compensation for land actually taken and any loss in value of the land still owned
Zoning and Variances
A local government has the power to pass zoning ordinances, so long as they are reasonably related to legitimate government purpose.
Variances may be granted to allow the owner to continue nonconforming use if he shows undue burden without the variance.
Not a taking unless it can be shown to amount to a regulatory taking.
