Constitutional law Flashcards
Eleventh Amendment jurisdiction of courts, and abrogation
A private individual cannot sue a state for money
damages in federal court.
Abrogation—Congress may expressly repeal state immunity if acting to enforce rights under
the 13th, 14th, and 15th Amendments
Congress may not abrogate state immunity by exercising Article I powers (such as the Commerce Clause)
Tip: this is usually the wrong answer on the MBE.
Can Congress divide the Supreme Court?
Congress cannot eliminate the Supreme
Court or divide it.
However, Congress may establish lower federal courts and give those courts jurisdiction to hear the same types of cases that go to the Supreme Court (and it has done so for all cases besides cases between states)
11th amendment? I think
Standing Elements, and mootness and ripeness
An individual needs an
1) injury in fact,
2) causation,
3) redressability in order to file a lawsuit.
The case must be ripe and cannot be moot.
Mootness—must have a live controversy
Ripeness—injury must have occurred or not be speculative
Can a court render advisory opinions?
A court will not render advisory opinions! If I had to guess it’s because there isn’t a controversy or something similar.
Organizational standing
: For an organization to have standing,
it must show: a member has standing, the member’s
injury is related to the purpose of the organization, and
individual members are not required to participate in the
lawsuit
Organizational standing elements
For an organization to have standing,
it must show:
1) a member has standing,
2) the member’s injury is related to the purpose of the organization, and
3) individual members are not required to participate in the
lawsuit
In addressing organizational standing, you must first analyze individual standing to meet the first requirement.
Congressional powers from the Constitution (Just list)
• Necessary and proper power: Tip: this must be combined with another power. • Taxing and spending power: • Commerce power: • War and defense power: • Enforcement power: • admiral and maritime power, *property power, *investigatory power, *postal power, *copyright and patent power, *power to coin money, *power to impeach, *and the power to delegate powers
Commerce Clause (elements)
o Congress has the power to regulate interstate commerce:
1) Channels of interstate commerce
2) Instrumentalities of interstate commerce
3) Activities that have a substantial effect on interstate commerce
This is very broad. Congress can regulate anything economic and anything noneconomic that substantially affects interstate commerce
Substantial Effect on interstate commerce analyssi
Economic activity is presumed to have a substantial effect.
Aggregation—can regulate economic activity that is intrastate if the activity as a whole
has an effect on interstate commerce
Noneconomic activity cannot be aggregated; the activity itself must have a
substantial impact on interstate commerce
Congressional Tax and Spending power, when is it permitted, and how can Congress use it’s spending power
Congress may tax and spend for the general welfare. Tip: it cannot “act” for the general welfare.
Congress can condition federal funds to states and require states to implement certain regulations
o Permitted as long as the condition is related to the purpose of the funds
HOWEVER the condition may not exceed the point at which “pressure turns into compulsion.” ( like 5-10% ok?)
What is commandeering?
Under the 10th amendment, Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly.
A valid exercise of the Spending Power does not violate the 10th Amendment
How can Congress delegate it’s powers?
Congress may delegate its powers to an agency as long as it provides reasonably intelligible standards
Congress can delegate legislative power to executive
agencies or the judiciary.
However, the power cannot be uniquely delegated to Congress by the Constitution (e.g., the power to declare war)
Where does Congress have Police powers?
Congress does not have police powers except over 1. (MILD) military bases, 2. Indian territories, 3. federal lands, and 4. D.C.
What is a legislative veto?
This occurs when Congress tries to overturn action by the executive branch without bicameralism and presentment.
UNCONSTITUIONAL
What kind of cases can the Supreme Court review?
federal courts of appeals and federal decisions made by state courts.
Federal Decisions made by state courts? When can Supreme Court hear those?
The Supreme Court can hear the latter type of case if:
1. the case involves a matter of federal law,
2. it is a final judgment from the highest state court authorized to hear the case, and
3. there are no adequate and independent
nonfederal (state) grounds on which the state court
decision is based.
Tip: if a state court decision rests on two grounds (a state ground and a federal ground) and the Supreme Court’s reversal of the federal decision would not change the outcome, the Supreme Court cannot hear the case
Political Questions Examples of what courts cannot hear
Federal courts will not hear political questions (those given to another branch of government by the Constitution).
Tip: Examples include: “republican form of government” clause challenges, military or foreign affairs decisions, or
impeachment.
Should federal courts enjoin pending state court proceedings?
federal courts should not enjoin pending state court proceedings unless the case is brought in bad faith or for harassment purposes
Powers the president has ( just list)
1) Veto power
2) Appointment and removal power
3) Pardons
4) War Power
5) Foreign Affairs
6) Treatises and executive agreements
Veto power of President
•The President can veto a law (but this can be overridden by a 2/3 majority vote by Congress).
A line item veto (crossing out certain portions of the bill that the President does not approve of) is not
permitted.
Presidential Appointment and Removal Power Process: Who can appoint, and how
The President has the power to appoint federal judges, ambassadors, and other principal officers of the United States, with the advice and consent of the Senate.
The President may also remove executive officials without cause, at will unless Congress limits removal for “good cause.”
Presidential Powers of Pardons, War Power and Foreign Affairs
• Pardons: the President may grant pardons for federal crimes.
• War power: The President can respond to attacks or emergency situations. The President cannot declare
war.
• Foreign affairs: the President has broad foreign affair powers, like have power to recognize country, etc.
Foreign Affairs
President has the power to conduct foreign negotiations, to deploy troops overseas, and to
make executive agreements
Presidential power: treatises and executive agreements
The President may enter into treaties with 2/3 Senate approval.
The President may enter into executive agreements with the heads of foreign countries.
How does presidential Immunity Work
the President is absolutely immune from civil suits for damages for any official acts as President (but not purely personal or pre-presidential acts).
Supreme Court’s Original, and original and exclusive jurisdiction
Original and exclusive jurisdiction for cases between states. Tip: remember that only the Supreme Court can hear cases between states
Original jurisdiction over any case that involves (APS) ambassadors, public ministers and consuls, or where the state is a party.
Supremacy Clause and Preemption
States may not pass laws
(1) that conflict with federal law,
(2) that interfere with a federal objective, or
(3) in areas where Congress has intended to “occupy the field.”
If state law conflicts with federal law, the federal law governs
a. 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.
b. Implied Preemption
1) Congress passes a federal law intending to “occupy the field”
2) The state law conflicts directly with federal law
1) The state law conflicts indirectly with federal law
Federal immunity from state law
A state cannot regulate or tax the federal government.
However, a state may tax federal employees the same that they tax everyone else.
Tip: This is a bar exam favorite. E.g., the federal government does not have to abide by state environmental regulation because of federal immunity.
Article IV Privileges and Immunities Clause
States may not discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means.
o This protection only applies to individual citizens; corporations cannot claim this clause
Tip: This is usually the issue when a state gives a hiring preference to its own citizens and discriminates against out-of-state citizens. Employment is only a fundamental right for purposes of Article IV.
The Fourteenth Amendment Privileges or Immunities Clause
States are not allowed to pass laws that would restrict access to vital governmental services (e.g., welfare benefits) to newcomers because such laws would interfere with a citizen’s fundamental right to travel from state to state.
Tip: this is usually the wrong answer on the MBE.
Dormant Commerce Clause
Under the Dormant Commerce Clause, a state may not discriminate against out of state commerce or in a way that unduly burdens interstate commerce
Remember that these rules apply to the states. Congress can pass laws that discriminate against commerce
Discrimination under DCC, and exception
Can be discriminatory on its face or by its impact
If a statute discriminates against out-of-state commerce, the state must show:
a) It has an important state interest; and
b) There is no other non-discriminatory means available to achieve that interest
Market Participant Exception—can favor local business if state is acting as a buyer or seller
Unduly Burden Interstate Commerce analysis under DCC
If a statute is not discriminatory, the law may still be invalid if causes an “undue burden” on interstate commerce.
A court will apply Pike balance test:
• The purpose of the statute;
• The burden on interstate commerce; and
• Whether there are less restrictive alternatives
Full Faith and Credit Clause:
states must enforce judgments of other states if the court that rendered the judgment had jurisdiction and the judgment was a final judgment on the merits
Can private entities be charged with constitutional issues like 1st amendment?
• The constitution protects against wrongful conduct by the government, not private parties.
HOWEVER
A private entity may be subject to the constitution if it is acting as if it is a state
5th Amendment—Takings Clause, just generally what is it
Government may not take private property for public use without just compensation
Definition of the “elements” of a 5th amendment taking (govt action, private property, public use, just compensation)
- Government Action
o Protects from government “taking” of private property
o Includes taking land and also regulatory takings by rezoning, prohibiting development, etc. - Private Property
o Usually involves land or other real property
o Can be other property such as contract and patent rights or trade secrets - Public Use
o Must be rationally related to a conceivable public purpose
o Includes health, safety, economic development, etc. - Just compensation
o Property owner is entitled to the fair market value of the property at the time of the taking
o Only a portion has been taken—owner entitled to compensation for land actually taken and any loss in value of the land still owned
Exam Tip 4: In past exams, the plaintiff has asked for the fair market value of the land as if it had been developed. The plaintiff’s recovery is limited to the value of the land at the time of taking.
