Con Law I Flashcards
(128 cards)
1
Q
Where does the SC have original jdx?
A
Under Article III, Section 2, the United States Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and in which a state is a party.
2
Q
Justiciability Limits:
A
- Prohibition against advisory opinions
- Standing
- Ripeness
- Mootness
- Political question doctrine
3
Q
Standing requirements:
A
- Injury (Distinct, palpable, actual, direct, personal)
- Causation (contributing cause is fine)
- Redressability (Incremental counts! EPA case)
- No third party claims
- Can’t sue as citizen or taxpayer
4
Q
Tools of Interpretation
A
History Text Structure Precedent Policy
5
Q
Gibbons v Ogden
A
Congress can control channels
6
Q
NLRB v Jones & Laughlin Steel Corp
A
Manufacturing is a part of commerce, rejects Formalist distinction. Substantial effects test.
7
Q
Wickard v Filburn
A
Wheat aggregation case, like Raiche.
8
Q
McCulloch v Maryland
A
Rational basis test birth
9
Q
Exceptions to Standing Requirements Third Parties
A
- If the plaintiff has a close relationship to the third party, allowing the claim might be justified
- Third-party unlikely to be able to bring the claim for themselves
10
Q
Exceptions to Standing Requirements General Grievances
A
Flast v Cohen: A taxpayer does have standing to challenge congresses exercise of its spending or taxing IF the claim is that it violates the Establishment Clause (government shall not establish religion).
11
Q
Ripeness Factors
A
- Hardship plaintiff will suffer without pre-enforcement review
- Fitness of the issues in the record for judicial review
12
Q
Mootness Exceptions
A
If plaintiff injury ends then case ends EXCEPT:
(1) capable of repetition but evading review; (2) voluntary cessation by the D (with the risk of re-starting the behavior after dismissal of the suit); and
(3) continuing with class action when named P has been mooted.
13
Q
Principles of avoidance
A
- If there’s case law that can decide a case, don’t get to a federal question
- If there’s independent state law that can solve the case, the SC shouldn’t hear it.
- If there’s an adequate and independent state ground, shouldn’t get to federal question
- If the court can decide the case with interpreting federal statute, it should avoid the broader constitutional question.
14
Q
Congress reviewing judiciary?
A
Congress regulating case results is judicial action. NOT ALLOWED.
But, if amending the law:
That is legislative. ALLOWED.
Authorizing executive to review judicial decisions?
NOT ALLOWED.
Congress ordering the judiciary to re-open final decisions.
NOT ALLOWED.
15
Q
City of Los Angeles v Lyons
A
No standing to sue the city because a chokehold may or may not happen again in the future
16
Q
Massachusetts v EPA
A
Incremental relief is ok for redressability in standing
17
Q
Federal Power Analysis Framework:
A
- Authority: Does congress have express or implied authority to act?
- Violation: Even if they have authority, has it violated constitution or other provision or doctrine?
18
Q
Rational Basis Test
A
- ENDS have to be legitimate and the
2. MEANS have to be appropriate, plainly adapted to achieve the ends.
19
Q
The Necessary and Proper Clause
A
Congress has power to use any means, not prohibited by the constitution, to carry out its authority (ends).
20
Q
Police Power
A
Congress does not have the power to legislate for the general welfare-there is no federal police power-but rather Congress has the power to spend for the general welfare.
21
Q
Substantial Effects test
A
Rational basis
Must look to the EFFECTS upon commerce, not the source of the injury, which is the criteria.
Even if activities are intrastate in character, if they have such a close and substantial relationship to interstate commerce that their control is essential and appropriate to protect that commerce, congress cannot be denied the power to access that control.
22
Q
Aggregation principle
A
You don’t look at EACH person, you look at the AGGREGATE effect.
23
Q
Congress’ Commerce power includes
A
- Channels
- Instrumentalities (goods or people)
- Activities (substantially affecting)
24
Q
Perez Test on Commerce Power
A
Congress is not mandated to make specific findings
25
Lopez Factors
1. Economic in nature?
2. Part of a larger economic scheme?
3. Jurisdictional Element?
4. Whether Congressional findings show substantial effects on interstate commerce
5. Links too attenuated?
6. Federalism
26
Tenth amendment restrictions
Principle of federalism
NY case: Commandeering legislature regulation.
Printz: Commandeering executive branch
27
Anti-Commandeering Doctrine
Prohibits the federal government from commandeering state governments: more specifically, from imposing targeted, affirmative, coercive duties upon state legislators or executive officials.
28
Taxing and Spending Powers
Can spend for the general welfare, can use sticks and carrots (Butler)
Tax = Functionally raise revenue and Spend for the general welfare.
Spending has to be for general welfare
29
Dole Rules for spending conditions:
1. Exercise of spending power must be in pursuit of general welfare
2. Unambiguous conditions
3. Conditions must be “germaine”
4. No violation of any other Constitutional provision (AKA NO COMMANDEERING 10th Amendment)
If too coercive, violates federalism
30
Bribery With Federal Money
Federal money is often mixed, so just because they can’t PROVE federal money was used in the bribe doesn’t mean they have no authority. (Sabri)
Think of the water tank with a hole
31
What can Congress regulate 13th Am
Limited to abolishing government action or private action that constituted the “badges and incidents of slavery”
Exception: 13th Am can be used to prohibit private racial discrimination in property transactions
32
What can Congress regulate 14th Am
Limited to “state action” (meaning government action). 14A can’t regulate private action.
Two Exceptions:
Public Function Exception
Entanglement Exception
33
14th Am on Private entities exception:
| Public Function Exception
Private entity must comply with Constitution if performing task traditionally, exclusively done by government.
34
14th Am on Private entities exception: Entanglement Exception
Private entity must comply with Constitution if government has authorized, encouraged, or facilitated the entity’s conduct
35
Saenz, 14th Am P&I, does these:
1. Allowing citizens to move freely between states,
2. Securing the right to be treated equally in all states when visiting, and
3. Securing the rights of new citizens to be treated like long-time citizens of a state.
36
Katzenbach Test
Broad test, Congress has the same broad powers expressed in N&P (appropriate legislation under McCulloch standard). RATIONAL BASIS on which Congress may resolve the conflict
37
City of Boerne Test
Congress can:
1. Remedy or deter likely constitutional violations BUT
2. Must be a congruence and proportionality between the injury to be remedied and the means to that end
Need clear statement of abrogation for lawsuits against states
(Congress can’t directly overrule an SC decision, but they can go farther than the courts as long as congruent and proportional)
38
Three Shared Powers (Executive and Legislative)
Impeachments, Appointments, Treaties
39
Take Care Clause for Executive
He shall take care the laws are faithfully executed
40
Youngstown Sheet Test
1. President and Congress agree on what to do.
Maximum presidential power
2. Congress silent: President can only use his own independent powers
>>>totality of circumstances<<<
3. President acts in defiance of express will Congress
“Remainder powers” = what's left after removing Congress powers
41
Nixon Standard
What’s the
1. need for executive privilege vs.
2. the need for regular old evidence in a criminal trial?
42
Congress Investigating the President Factors (Trump v Mazars):
1. Can they reasonably get the information elsewhere?
2. Is the subpoena no broader than reasonably necessary?
3. What evidence does Congress have that they need the information?
4. What burden does this pose on a sitting president? (more than just time and attention Clinton)
43
State grand juries can subpoena president? T/F?
True
44
Presidential Immunity when:
Immune from actions while taken during presidency in official capacity
No immunity for actions in 1. unofficial capacity or 2. before presidency,
45
Non delegation doctrine rules
1. Congress must set standards, can’t be “unfettered” discretion.
2. Congress has to set the policy standards, and then others may make subordinate rules within prescribed limits
Intelligible principle
46
Intelligible Principle
Required for delegating powers. Discernible or identifiable principle, a principle that can be seen and guide
47
Legislative Limits
1. No line item veto
2. Minimal non delegation doctrine
3. No legislative veto (“one house veto”)
48
Legislative veto
Court says legislative if “legislative in purpose or effect”: Alters the legal, rights, duties of those outside the legislative branch
Bicameralism and presentment required
49
Principal Officers
Must be appointed by the President with the advice and consent of the Senate.
1. President nominates
2. Senate confirms
50
Inferior Officers
Inferior officers may be appointed by the President or by a department head, without Senate approval.
Subject to President’s authority
51
Recess Appointment Rules
President alone can fill up seats during Senate vacancy Recess Appointment
Granting commissions which expire at the end of the congressional session
1. Any kind of recess
2. Can fill seats during or before recess
3. Recess must be at least 10 days to use power
52
FACTORS: Principal vs Inferior (morrison)
1. Look at removal (how were they removed?)
2. Duties are limited?
3. Limited Jurisdiction?
4. Limited Tenure?
53
Exceptions for Removal by Pres
1. Humphry Exception (FTC)
Multimember expert agencies that do not wield substantial executive power.
Commission is supposed to be non-partisan
It’s “quasi judicial” and “quasi legislative”
2. Morrison Exception (Independent Counsel)
Inferior officers with limited duties and no policymaking or administrative authority
54
Removal for president
President allowed to remove people who are purely executive in function (Myers)
The entire executive power belongs to the president alone (Seila)
55
Foreign Affairs Standards
One voice
| Broad range of powers
56
Recognition Power President
Executive can recognize sovereigns
Broad power
If exclusive, then Congress is not allowed to contradict
57
Recognition Power Congress
1. Congress can handle naturalization and immigration
2. Passports too
3. President is superior and therefore can’t be contradicted.
58
Treaties and Agreements Rules
1. Treaties cannot violate inherent constitutional rights
2. Treaties are self-executing, immediate force of law without any further implementation
3. Or, Non self-executing. Negotiate treaty, ratify it, not enforced until implemented with federal legislation in congress
4. Default is non self-executing, treaty needs to say it is self-executing.
59
Mathew v Eldridge Balancing Test (Hamdi)
For due process during war
1. Private interest (nature of, and how strong is it)
2. Government interest (how strong is it)
3. Risk of error under current procedures compared to the value of added procedures. (could add notice and fair hearing)
60
National Security
Only needs a rational basis
61
Limits on States
1. Preemption
2. DCC
3. P&I
62
Explicit preemption factors
1. What did it preempt exactly?
| 2. Did the government set a floor or ceiling?
63
Implied preemption types
1. Conflict (conflicts with federal law)
2. Obstacle frustration (not total conflict, but stands as obstacle to federal law)
3. Occupation of field (congress fully occupies a field, no room for state regulation)
64
States can go beyond the courts for:
States can go beyond the courts for safety and environmental reasons
65
The General Police Power
To regulate the 1. health, 2. safety, 3. welfare, and 4. morals of the people.
States have this power intrinsically.
Feds do not have this power in the constitution.
66
How to spot Dormant Commerce Clause
1. Congress has not acted is key a question about DCC.
2. Did states go too far in making a law that burdens interstate commerce?
3. If you're Balancing the benefits of a law versus the burden it imposes on interstate commerce.
67
Under DCC, if law is Protectionist only then:
Test: virtually per se invalid if only protectionist
| BUT remember the Minnows case vs Nuclear waste
68
Under, DCC if law discriminatory, Burden on state/local has to show:
1. No less discriminatory alternative (means)(narrowly tailored)
2. To serve legitimate end/purpose
69
Addressing If no IN-STATER BURDEN:
Very fact dependent
Can you argue out of staters benefit? Can you argue in-staters are burdened?
No state protectionism!
Don’t be “Out of step” with neighboring states (Bibb)
70
Exceptions to the Dormant Commerce Clause
1. Congress approve the state law. Even a clearly unconstitutional, discriminatory state law will be allowed if approved by Congress because Congress has plenary power to regulate commerce among the states.
2. “Market participant exception”
71
Use High scrutiny in commerce when law is:
Protectionist: Blatantly and only trying to protect its own citizens at the expense of everyone else economically.
Discriminatory: Plausible reason for doing so
72
Balancing test in state affecting commerce:
Non-discriminatory: May still be struck down if it still imposes an undue burden on interstate commerce.
Interstate burdens > local benefits.
73
Discrimination Types for P&I and DCC
Face: Obvious on face
Purpose: Look to stated purpose
Effect: tough one, who has benefited? And who is burdened? In-staters and out-of-staters (four square chart)
74
Art. IV Privileges and Immunities Clause Factors
| No state discrimination against out-of-staters regarding two things:
1. Fundamental rights
2. Economic activity (ability to earn livelihood)
Need substantial end and substantially related means to do so.
75
Identifying Art IV P&I
Looking for a state making it harder for out of staters to earn money in that state for Art IV.
76
Identifying 14th Am P&I
Look to Saenz (“a state cannot discriminate against new residents”). That’s it.
77
Incorporation doctrine
Can sue for fundamental rights in a state via 14th amendment. Use Liberty to apply to 5th amendment and apply to government.
78
14A Rights
1. P&I (only Saenz)
2. Due Process
- -procedural (ie criminal law, notice, etc)
- -substantive (usually giving substance to “liberty”)
3. Equal Protection
79
Section 5 of 14 Am
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
80
When to do a Privileges and Immunities Analysis and first step and what it applies to
1. Has the state discriminated against out of staters with regards to privileges and immunities that it accords its own citizens?
2. If there is such discrimination, is there sufficient justification for the discrimination?
P&I Clause only applies to FUNDAMENTAL rights, of which big game hunting is not one (Montana)
Being a lawyer is a fundamental right (Piper)
81
How to apply EP analysis to Discrimination, types of discrimination and what to do
1. Is the law discriminatory on its face? Apply chart
2. If not facial, can you convince the court that it was intentional? If so, use the heightened scrutiny
3. If not, must show that there is disparate impact and show it was not rationally related to any conceivable legitimate ends.
82
Prejudices as basis for the law ok?
Racial prejudices cannot be a basis for the law (Sidoti)
83
When you see Disparate Impact what Analysis
Apply rational basis. Burden on the challenger.
1. Intent standard requires disparate impact to be intentional outcome for stricter
2. If law is facially discriminatory, also need disparate impact to get stricter
84
Evidence needed for Discriminatory Purpose (Arlington Heights/Feeney)
1. Disparate impact data
2. Historical background
a. Pattern/series of actions
b. Sequence of actions
c. Departure from normal procedural or substance based behavior
3. Legislative history (statements, intent)
85
Affirmative Action Analysis
Only NARROWLY TAILORED MEANS
Affirmative action → Strict for STATE/LOCAL
Strict scrutiny to FEDERAL affirmative action too
Race can be considered but, no quotas
Tax dollars can help racism making it a non-private issue
86
Bolinger test for affirmative action
1. “Critical mass”, not racial balancing
| 2. No mechanical numerical valuation of diversity
87
Fisher I controlling principles educational affirmative action
(1) The program must be able to withstand strict scrutiny, or be able to demonstrate that the use of the classification is necessary;
(2) pursuing substantial benefits from a diverse student body is a proper academic judgment; and
(3) the university bears the burden of proving race-neutral approaches do not suffice to achieve the goal
88
Strict Scrutiny (Fully Suspect Class)
1. ACTUAL PURPOSE is Compelling (Tight tailoring)
| 2. Strict (Necessary/Least Restrictive & Narrowly tailored) (NO LESS RESTRICTIVE ALTERNATIVE)
89
Intermediate Scrutiny (Quasi-suspect class)
1. ACTUAL PURPOSE is IMPORTANT(Middle tailoring) (No stereotyping)
2. Substantially related
“Exceedingly persuasive justification”
90
Ends and means for Rational (Non-suspect class)
1. ANY CONCEIVABLE PURPOSE that is Legitimate (Loose tailoring)
2. Rational
91
US v Carolene Products Co. (footnote 4)
Court is suspect when laws passed which harm “discrete and insular” minorities
92
Frontiero Factors (Suspect Class)
1. History of discrimination, including stereotyping
2. Political powerlessness or underrepresentation in the political arena
3. Immutability (unchangeable)
4. Irrelevance to individual ability (No relation to ability to conform or contribute to society)
93
Pregnancy Classification
Rational by constitution
94
Immigration Discrimination Analysis
1. Congress or President: Rational basis
a. Unless, agency being used has nothing to do with immigration.
2. State or local: Strict
a. Exception: unless about self-government and the democratic process. (teachers, police, parole officers, elections)
95
Undocumented Persons Classification
Rational basis (can go to school due to Plyler v Doe)
96
Nonmarital Children Classification
Intermediate scrutiny
Laws that provide benefit to Nonmarital Children: If you see some nonmarital kids can get benefits, might get it depending on facts.
97
Equal Protections Analysis When:
EP analysis requires strict scrutiny only when the classification interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.
98
Disability Classification
Rational basis with bite
Irrational fear of a group is not a government reason to discriminate
Mental retardation just need clear and convincing evidence
Mental illness, then you need higher proof beyond a reasonable doubt to be civilly committed
99
Wealth Classification
Rational basis
100
General Classifications for Scrutiny (Who is in what category):
Strict: Race and “alienage” (minus exceptions)
Intermediate: Sex and nonmarital children (maybe undocumented children)
Rational: Age and disability (also likely wealth but not squarely decided)
101
Feeny vs Arlington Rules
Feeny: Prove that gov took that action at least in part because of its adverse effects on the group.
Arlginton: What evidence works
102
Can Congress prohibit constitutional violations even if conduct is not unconstitutional?
Legislation which deters or remedies constitutional violations can fall under Congress power even if it prohibits conduct which is not unconstitutional
103
EP analysis framework (What do we do with an EP question)
1. Do we know the level of scrutiny? If we know, then apply. If we don’t, apply suspect class factors. (Frontiero)
2. Is it facial or intentional? Apply proper scrutiny Only disparate impact? Apply rational basis
3. Gather evidence, can you show they took action at least in part of the adverse effects on the affected group?
104
DCC and P&I Framework:
1. Is the law only protectionist? Virtually per se invalid
a. But if state has reason (non-protective) Higher discriminatory standard
2. Law not only protectionist but mucks up free flow of commerce?
a. Undue burden balancing test
105
Three things Congress typically does to address society problem:
1. Prohibit, federal crime
2. Spend money to influence decisions
3. Authorize us to bring lawsuits against states
106
11th amendment Exceptions
1. Lawsuits against state officials, so long as not bringing it against state to get damages from the state treasury.
2. States can waive immunity and consent to be sued (ie as condition for funds)
3. Legislation that’s passing is within its authority of Section 5 of the 14th amendment
107
Due Process Clause Description
No person shall be “deprived of life, liberty, or property without due process of law.”
Incorporates bill of rights into Liberty
108
Executive Privilege
Applies to civil proceedings, but it’s weaker. President has a constitutionally based claim over official records where there’s a need for confidentiality. Official white house records start with a presumption of some executive privilege, but it was outweighed by a need for criminal evidence in the Nixon case. In Civil cases, the need is less.
109
If an activity is economic or part of a larger economic scheme of regulation
then the Court can aggregate and would likely find that Congress is rationally regulating an activity that substantially affects interstate commerce. This is, as we discussed, essentially the same as the broad approach.
If it ISN'T economic or part of a larger regulatory scheme of economic activity, then the Court will not aggregate and will proceed with the other Lopez/Morrison factors, which is the narrow approach that is much tougher on Congress.
110
executive agreement
Stronger version of treaty exclusively prez I think
111
intergovernmental immunity
State and local governments cannot tax or regulate the activities of the federal government.
112
How to defeat non-suspect class discrimination
Show no rationally related means (ie. only created to harm the non-suspect class)
113
15th amendment
Right to vote shall not be denied on account of race.
| Section 2: Power to enforce
114
Political Question Doctrine Factors
1. Resolution of Constitution to a coordinate branch of government?
2. Resolution mean move beyond areas of judicial expertise?
3. Do prudential considerations counsel against judicial intervention?
115
Not justiciable political q's:
Guaranty clause
Impeachment
Foreign Policy
Partisan gerrymandering
116
10th amendment commandeering exception for market participants case
Reno v Condon, can regulate as market participants
117
NRLB rule for affecting commerce
where the court determined that things affecting commerce could be constitutionally
regulated (JURISDICTIONAL ELEMENT)
118
Jurisdictional Element
when congress limits reach of statute to things each case with an actual link to interstate commerce
119
Attenuation
Focus on whether a possessed instrumentality (like in Lopez) vs purchased instrumentality
120
Sebelius
100% of funds for Medicaid expansion, too coercive
121
Necessary and Proper
Reasonably adapted
| Legitimate ends
122
Bakke case
Affirmative action, diversity is a compelling interest in education
No quotas under Gratz
123
Federal Affirmative Action
Strict scrutiny
124
Gratz v Bolinger
Not narrowly tailored, no quantitative tests like adding points
125
Feeney case
Veterans in office is a legitamite and rationally related goal. Only disparate impact
126
Arlington Heights use (not factors)
Third party standing for black home
Buyers who would be injured
Need to show intention, court found none here
127
Foley case
Alien applied for New York State Trooper
Denied as historical power for states to control political institutions.
Rational basis
128
Anti Commandeering doctrine. Can't make states:
| Exceptions:
```
Congress can’t commandeer the states:
To enact fed policy (NY v US)
To administer fed policy (Printz)
BUT see Reno:
Congress directly regulating data (commerce clause)
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