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Capstone > Con. Law: the Judiciary and Seperation of Powers > Flashcards

Con. Law: the Judiciary and Seperation of Powers Flashcards

1
Q

Who has the power to create federal courts?

A

Congress

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2
Q

Beyond federal question or diversity, what is the scope of federal jurisdiction?

A

(1) cases involving public ministers, ambassadors, and consuls
(2) controversies in which the US is a party
(3) controversies between two states
(4) controversies between a state and citizens of another state

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3
Q

What is the Eleventh Amendment?

A

Unless waived, provides state sovereign immunity from suit

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4
Q

Are subdivisions of a state included in the Eleventh Amendment?

A

No

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5
Q

What power does Congress have to abrogate the Eleventh Amendment?

A

Congress may create a private cause of action in suits where the state violates the Thirteenth, Fourteenth, or Fifteenth Amendments

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6
Q

What must Congress do when passing an act which abrogates state immunity?

A

(1) assert clearly that it is abrogating state immunity
(2) enact the act under a grant of power that may abrogate state immunity

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7
Q

Other than the post-Civil War amendments, what are other exceptions to the Eleventh Amendment?

A

(1) suit against state officials for abuse of power
(2) state v. state or federal gov. v. state
(3) private citizen may enjoin a state official from acting in violation of their constitutional rights

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8
Q

Is a federal court or the Supreme Court able to rule on a case where there is not a controversy?

A

Dude…we learned this in civics in like 10th grade. Please tell me you said no.

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9
Q

Is a declaratory judgment the same as a certified question?

A

No, a federal court may rule on a declaratory judgment

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10
Q

What are the requirements for a federal court to rule on a declaratory judgment?

A

(1) plaintiff must meet all of the controversy tests
(2) the case must be judiciable

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11
Q

What are the factors in judiciability?

A

(1) Mootness
(2) Ripeness
(3) Standing
(4) Political Question
(5) Abstention / Adequate State Ground

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12
Q

When is a case considered moot?

A

When the controversy or matter has been resolved.

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13
Q

Is the resolution to a controversy or matter automatically make a case moot?

A

No, the court may hear the case if:
(1) there are still collateral or lesser matters to resolve
(2) the injury is capable of repetition but evading review

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14
Q

What is the voluntary cessation doctrine?

A

A defendant’s voluntary cessation of a challenged practice does not make a case moot

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15
Q

What is the strict standard for determining whether a case is moot under the voluntary cessation doctrine?

A

(1) the burden of persuasion that the challenged conduct cannot reasonably be expected to begin again lies with the party asserting mootness
(2) whether or not the defendant has defended its actions

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16
Q

What is ripeness?

A

Whether or not a case or claim is fully developed

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17
Q

In the context of a law, what would be an unripe case?

A

(1) If the statute had not yet been passed or enacted
(2) if there is no real threat that the statute would be enforced

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18
Q

In the context of a law, what is an exception to ripeness?

A

Demonstrating that the law poses a real or present harm and/or a specific future imminent harm

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19
Q

When might a court abstain from a case involving state law?

A

Like with supplemental jurisdiction:
(1) unresolved issues of state law
(2) unclear meaning of state law or regulation
(3) probate law
(4) family law

One other is criminal law where the criminal proceedings are ongoing

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20
Q

What is standing?

A

(1) injury-in-fact
(2) causation
(3) redressibility

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21
Q

What is injury-in-fact?

A

(1) a concrete and particular direct personal injury
(2) either imminent or actual
(3) caused by the action that plaintiff challenges

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22
Q

When is an injury particular?

A

Where it is personal and individual

i.e. suit due to abuse by police v. a suit of abuse to zoo animals

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23
Q

When is an injury concrete?

A

The injury exists and is not hypothetical

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24
Q

Is monetary harm required for an injury-in-fact?

A

No, an injury may be intangible requiring injunctive relief rather than monetary damages

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25
Q

What is causation for the purpose of standing?

A

Whether the challenged action or omission is the the cause of the plaintiff’s injury

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26
Q

What is redressibility for the purpose of standing?

A

Plaintiff must show that they stand to benefit from the relief sought

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27
Q

Do taxpayers have standing to sue for unconstitutional expenditures?

A

No, because their injury is considered minute and indeterminable and their interest too remote

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28
Q

What would constitute an exception to a taxpayer’s lack of standing?

A

Where the unconstitutional behavior in fact causes direct harm to the plaintiff.

i.e. the violation of the establishment clause in federal expenditures to parochial schools

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29
Q

When would a plaintiff have standing to sue on behalf of third-parties?

A

(1) the plaintiff has suffered also the injury
(2) a special relationship exists between the plaintiff and third-party due to a connection between the plaintiff’s interests and the third party’s constitutional rights
(3) where the third party finds themselves unable to sue on their own behalf

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30
Q

How are associations affected by the third-party exception for the purpose of standing?

A

Associations may assert the claims of its members even if the association has not suffered injury and
(1) members have standing to sue personally
(2) the interest is germane to the association’s purpose
(3) neither the claim asserted nor the relief requested would require participation of the individuals

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31
Q

What is the Political Question doctrine?

A

The refusal of federal courts to hear cases which involve matters wholly assigned to another branch of government

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32
Q

For the purpose of the Political Question Doctrine, what are the factors based on the seperation of powers?

A

(1) whether there is a textually demonstrable constitutional commitment of the issue to an other political department
(2) requires a court to express a lack of respect for other branches of government
(3) unusual need for unquestioning adherence
(4) the potential for embarrassment from multifarious pronouncements by various departments on one question

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33
Q

For the purpose of the Political Question Doctrine, what are the factors based on the limitations of the judiciary?

A

(1) a lack of judicially discoverable and manageable standards
(2) impossibility of deciding without an initial policy determination undeterminable by the judiciary

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34
Q

What are specific areas that the Court has determined to be political questions?

A

(1) impeachment processes
(2) amendment ratification processes
(3) president’s power to unilaterally terminate a treaty
(4) foreign affairs
(5) Guaranty Clause issues under Art. IV

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35
Q

What is an exception to the political question dotrine?

A

Whether the individual challenging is injured due to discrimination based on a suspect group.

i.e. gerrymandering political districts for the purpose of racial discrimination

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36
Q

What are the specific powers of the Supreme Court?

A

(1) hold acts of the federal government unconstitutional
(2) hold state statutes unconstitutional
(3) review state court decisions to ensure that states act in conformity with federal law and the Constitution
(4) other matters involving state law

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37
Q

What matters are involved when the Court decides to take a state law question due to diversity jurisdiction?

A

(1) the Court defers to existing state court interpretation of the law
(2) where there is not yet interpretation and the Court can predict such an interpretation, interpret the state law
(3) when the Court can not make the determination in (2), abstain from the case

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38
Q

How can the Supreme Court’s jurisdiction be invoked?

A

(1) Appeal
(2) Writ of Certiorari

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39
Q

What is a writ of certiorari?

A

A request to review a state supreme court and federal court decision

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40
Q

What are the grounds for cert?

A

(1) cases involving conflicts between federal district courts
(2) cases involving conflicts between the highest courts of two states
(3) cases involving conflicts between the highest state court and a federal court
(4) cases from state courts or U.S. courts involving important but unresolved issues

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41
Q

What is meant when the Supreme Court abstains for adequate and independent state grounds?

A

Where a state court judgment deciding a federal question is based on an adequate and independent state ground, the Supreme Court, specifically, will not take jurisdiction

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42
Q

When does adequate and independent state grounds apply?

A

(1) where the state court determines whether a state law violates other state law or the state’s constitution
(2) whether a state law violation of (1) also violates a federal law

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43
Q

Would the adequate and independent state grounds apply if the decision is based in federal interpretation of a similar federal law?

A

No

44
Q

What may the Supreme Court do if the state court decision’s basis is unclear?

A

The Court has the power to dismiss and remand the case for clarification

45
Q

What are the core powers of Congress?

A

(1) legislative
(2) commerce
(3) taxing
(4) spending
(5) war and defense
(6) investigatory
(7) property & eminent domain
(8) admiralty & maritime
(9) bankruptcy
(10) postal
(11) copyright and patent

46
Q

What is under Congress’s legislative powers?

A

Enumerated powers of the Constitution and the implied powers of the Necessary and Proper Clause

47
Q

What is the scope of regulation permitted to Congress under the Commerce powers?

A

(1) channels of interstate commerce
(2) instrumentalities of interstate commerce
(3) activities substantially affecting interstate commerce

48
Q

What is the affectation doctrine?

A

The ability of Congress to regulate economic activity in one state or many which has a substantial direct or indirect effect on interstate commerce

49
Q

Are cumulative effects by individuals’ actions included within the affectation doctrine?

A

Yes, under the cumulative effect doctrine

Listen, don’t get mad at me for this one. It felt so stupid to write.

50
Q

What are the limits of Congress’s plenary commerce powers?

A

The activity must be economic in nature or substantially affect economic activity.

i.e. gun possession v. drug use

51
Q

When might taxing be used as a regulatory device?

A

(1) When Congress has the power to regulate the activity
(2) the main purpose of regulating through tax is revenue raising

52
Q

What does the General Welfare Clause mean for Congress’s ability to tax and spend?

A

It is a limitation. It imposes the duty to spend and tax for general welfare of the US

53
Q

When is it permissible for Congress to require states to comply with specific conditions to receive federal funds?

A

(1) the spending serves the general welfare
(2) the condition is unambiguous
(3) the condition relates to the federal program
(4) the state is not required to undertake an unconstitutional action
(5) the amount is not so large as to be coercive

54
Q

What powers are included in Congress’s war and defense powers?

A

(1) declaration of war
(2) raise and support armies
(3) provide and maintain a navy
(4) organize, arm, discipline, and call for a militia

55
Q

What are limitations to accused individual’s rights in court martial proceedings under military courts created by Congress?

A

The Bill of Rights’ procedural safeguards do not apply

56
Q

What is the jurisdiction of military courts?

A

(1) offenses committed by service members on a military post or in an area under military control
(2) current members of the armed forces regardless of status

57
Q

Are military court’s permitted to have jurisdiction over civilians and their dependents?

A

Only if there are no available courts and Congress has affirmatively granted jurisdiction

58
Q

Are military court decisions subject to civilian court review?

A

Sometimes, specifically with the rights of enemy combatant and POW detainees

59
Q

What is the scope of Congress’s ability to investigate?

A

As long as it touches on Congress’s regulatory powers, they can investigate

60
Q

What may Congress do when a person fails to appear after being summoned?

A

(1) cite the witness for contempt
(2) refer the issue to the Attorney General for prosecution

61
Q

What are a witness’s defenses for failure to appear for a summons issued by Congress?

A

(1) privilege against self-incrimination
(2) lack of due process safeguards
(3) interference with First Amendment rights to privacy and freedom of association

62
Q

What must Congress do when exercising its power of eminent domain?

A

(1) take the property for public use
(2) justly compensate the owner

63
Q

What is the purpose of the Speech and Debate Clause?

A

To protect members of Congress and their aides from suits involving “acts occurring within the regular course of the legislative process”

64
Q

What does the Speech and Debate Clause not mean?

A

It does not include bribes to influence legislation

65
Q

What must Congress show to enforce the post-Civil War Amendments?

A

(1) state governments have engaged in widespread violations of the amendments
(2) legislative remedy is congruent and proportional to the violation

66
Q

Must Congress show widespread violations to enforce the Thirteenth Amendment?

A

God, I hope you said no

67
Q

How many plaintiffs must have standing in order for a case to progress?

A

Only one

68
Q

What powers does POTUS have?

A

(1) Appointment
(2) Veto
(3) Pardon
(4) Executive Privilege
(5) Commander-in-Chief
(6) Treaty-making & Executive Agreements

69
Q

What is included in POTUS’s appointment power?

A

(1) appoint ambassadors, cabinet members, and other high-ranking positions.
(2) remove appointed members

70
Q

What is the restriction on POTUS’s ability to appoint?

A

He must get the advice and consent of Congress

71
Q

May Congress delegate its authority to appoint?

A

Yes, Congress can allow the President, Judiciary, or heads of departments to appoint inferior officers

72
Q

May POTUS remove an appointed official for any reason?

A

If a fixed term, POTUS cannot remove without cause. If an unfixed term, POTUS can remove without cause

73
Q

May POTUS remove federal judges?

A

No, they may only be removed through impeachment

74
Q

How long does POTUS have to sign a bill passed by Congress?

A

10 days

75
Q

What happens if POTUS does not sign the legislation in 10 days?

A

He essentially pocket-vetos the legislation

76
Q

If POTUS vetos (not pocket-veto) legislation, can Congress over ride him?

A

Yes, with a 2/3rds vote from both houses of Congress.

Remember how a majority of Civ. Pro. filings (not answers) are 21 days? Yeah well most of the Constitution requires 2/3rds votes. So 9 times out of 10, if there is a vote it better be 2/3rds to be valid

77
Q

Is a line-item veto constitutional?

A

No

78
Q

What the f**k is a line-item veto?

A

Where the President vetos parts but not all of a piece of legislation.

79
Q

How can Congress delegate legislative/regulatory authority to the executive branch?

A

(1) expressly providing for the power in the piece of legislation; and
(2) providing the department or agency a guiding principle

80
Q

When does POTUS have absolute privilege?

A

When the information deals with national security issues.

81
Q

When might other Presedential communications be unprivileged?

A

During a criminal trial

82
Q

In her faithful execution of the laws, how kind of discretion does POTUS have?

A

POTUS may choose how and when to prosecute cases

83
Q

What are POTUS’s war powers?

A

POTUS is the commander-in-chief, meaning she may command and order troops during war time

84
Q

May POTUS sieze property during war-time?

A

Yessir

85
Q

Is the President able to use military force outside of Congress’s declaration of war?

A

Yes

86
Q

In what situations may the President use military force outside of a formal declaration of war?

A

(1) Congress authorizes force
(2) there is an attack on the United States itself

87
Q

Is a Congressional Authorization of Force the same as a Declaration of War?

A

No, an authorization of force permits the President to conduct military campaigns within certain limits.

88
Q

How may a treaty be enacted?

A

(1) the President negotiates and signs it
(2) 2/3rds of Congress ratify it

89
Q

Is a treaty immediately US law once ratified?

A

Only if the treaty is self-executing

90
Q

What is a non self-executing treaty?

A

A treaty which does not contain language that operates as de facto legislation.

Ex. Extradition treaties are self-executing because they contain language which compells action

91
Q

Does a treaty preempt state law?

A

Yes

92
Q

Does a treaty preempt federal law?

A

Only if it comes after the conflicting federal law

93
Q

What is an executive agreement?

A

An executive agreement is like a treaty but is conducted under the President’s sole authority in Foreign Relations

ex. an agreement to pursue similar policy measures, become allies, etc.

94
Q

How is a President impeached?

A

I don’t know ask Donald Trump lol

Kidding … the House impeaches and the Senate tries the impeachment with the Chief Justice presiding

95
Q

May Congress enact a law allowing itself to change or modify the law later?

A

No

96
Q

May the President spend less than what Congress allots?

A

No

97
Q

What is the basic premise of the Tenth Amendment?

A

Any powers not given to the federal government is afforded to the states

98
Q

What does the Tenth Amendment mean in practice?

A

That the areas traditionally dominated by states are state powers unless Congress legislates under one of their express powers.

99
Q

May states tax federal government agencies?

A

No, but they may tax persons who contract or deal with the federal government

100
Q

When does a state have federal tax immunity?

A

(1) uniquely state activities
(2) essential government functions

101
Q

What is the Dormant Commerce Clause?

A

Where Congress has not acted and does not seek to dominate an area, a state may regulate it so long as it does not incidently burden interstate commerce

102
Q

When might a state’s laws discriminate against a non-state resident?

A

(1) the regulation serves a compelling state interest;
(2) narrowly tailored to serve that interest

103
Q

What is the balancing test used to determine whether or not something burdens interstate commerce

A

local benefits are outweighed by the burden on interstate commerce

104
Q

What are the factors a court will use to determine whether the state tax is valid?

A

(1) substantial nexus between the activity and the state
(2) tax is fairly apportioned
(3) the tax must not discriminate against interstate commerce (whoah how original)
(4) tax must be fairly related to the services provided by the taxing state

105
Q

How is “substantial nexus” determined for state tax validity purposes?

A

Whether the individual has substantial contact with that state.

*note this is a higher standard than Personal Jurisdiction

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