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Flashcards in Constitutional Law Deck (145)
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Judicial Power

Source: Article 3
Limit: Actual cases and controversies
Doctrine: Justiciability, whether lawsuit is capable of judicial resolution as a case or controversy, depends on:
- What it requests (no advisory opinions)
- When it is brought (ripe and not moot) and
- Who brings it (someone with standing)
Additional doctrines limit federal court review: political question, sovereign immunity and abstention.
Special Rules govern Supreme Court Review


Advisory Opinions

Federal Courts may not render advisory opinions which lack,
- An actual dispute between adverse parties
- Any legally binding effect between the parties on the parties
Declaratory Judgments are not advisory opinions



too early
Federal courts may only decide controversies that are ripe for judicial review
Application: a request for pre enforcement review of law are not ripe unless:
- Substantial hardship in absence of review (the more the better) and issues on the record are fit for review (the more legal than factual the better



Live if
- For the case of injunctive and declaratory relief challenged law or conduct continues to injure
- For damages plaintiff not made whole from injury
Exceptions: though injury has passed, not moot if:
- Injury is capable of repetition yet evades review because of inherently limited duration
- Defendant voluntarily stops challenged activity but may restart at will or
- In class actions, one plaintiff suffers ongoing Injury



Plaintiff must have standing to sue which consists of:
A. Injury
B. Causation
C. Redressability


Injury/ Standing

What: almost any harm counts
Ex: Physical, economic, environmental, loss of constitutional or statutory rights
Not: Ideological objections or generalized grievances as citizen or taxpayer
- Citizen may not sue to force government to obey laws
- Taxpayer may not sue over how government spends tax reviews
- Taxpayer challenge to his or her own tax liability
- Congressional spending in violation of establishment clause
A. Not executive spending
B. Not tax credits for contributions for private (including parochial) tuition


When must injury occur for standing?

injury must have occurred or will imminently occur
- Injunctive or declaratory relief: must show likelihood of future harm


Who must be injured for standing?

injury must be suffered personally by plaintiff rather than those not before court
- No third party standing


Third Party Standing Exceptions

Close Relationship:
1. Plaintiff Injured
2. Third Party unable or unlikely to sue
3. Plaintiff can adequately represent third party
Organizations (on behalf of members):
1. Members have standing
2. Members injury related to purpose of organization
3. Members participation not required (eg not seeking individualized damages)
Free Speech Overbreadth (party whose speech can be censored on behalf of those whose speech cannot):
1. Substantial overbreadth in terms of laws legitimate to illegitimate sweep
2. Not Commercial Speech


Legislative Standing

legislators may challenge acts that injure them personally, rather than the legislature generally


Causation for Standing

Plaintiff must show that injury is fairly traceable to defendant
Ex: no causation where parents of black public school children challenged IRS failure to deny tax breaks to discriminatory private schools, claiming breaks caused public schools to be less integrated


Redressability for Standing

Plaintiff must show that favorable court decision can remedy the harm (ie through money damages or an injunction)
Ex: No redressability where mother challenged states failure to prosecute for nonpayment of child support, claiming loss of child support from lack or prosecution


Political Question Doctrine

Federal Courts will not decide political questions
- Committed by the constitution to the political branches of government or
- Incapable of or inappropriate for judicial resolution


Examples of Political Questions

1. Guarantee Clause (article IV, Section 4): challenges to a states government as not a “republican form of government”
2. Foreign Affairs: Challenges to President’s conduct of foreign policy and command decisions
3. Impeachment Process: Challenges to procedures used by senate to remove officials
4. Partisan Gerrymandering: Challenges to drawing election districts on a partisan basis
5. Elections and qualifications of members of congress
6. Seating of delegates at national political convention


Sovereign Immunity

11th amendment/ Federalism

State as defendant where lawsuit is federal and state courts (and agencies)

State as defendant and
Lawsuit involves-
1. Waiver (Ex: some have waived under tort claim acts)
2. Plaintiff- other states or feds
3. Bankruptcy proceedings
4. Clear abrogation by congress under 14 amendment powers to prevent discrimination

Not barred:
Where Defendant is State Officials and
Lawsuit involves
1. Injunctive Relief
2. Money damages from own pocket
Defendant- Local government
Lawsuit: Any



1. Federal courts may decline to decide a federal constitutional claim that turns on an unsettled question of state law
Ex: Equal protection claim that depends on meaning of ambiguous new state immigration law
2. Federal courts generally may not enjoin pending state judicial or administrative proceedings
Ex: criminal trial allegedly in violation of Due process


Supreme Court Review

Final Judgment Rule: Supreme Court only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special statutory situations) a three-judge district court

Independent and Adequate State Grounds: Supreme Court will not review a federal question if the state court decision rests on an independent and adequate state law ground
- Independent and Adequate (separate and sufficient) State Grounds exists if outcome would be the same regardless of how the federal question is decided
- If it would be decided the same as state, there is no reason for supreme court to review


Legislative Power

Source: Article 1 of constitution
Limit: Enumerated Powers
- Unlike states, congress has no general police power to pass laws
Exceptions: federal land, Indian reservations, DC


Necessary and Proper Clause

Not a basis of legislative power
Allows congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution
Ex: Article I gives Congress power to raise and support armies but not to hold a bake sale. Nonetheless Congress may choose the means of a bake sale to help raise and support armies


Enumerated Powers

Ex: Citizenship, bankruptcy, federal property, patents and copyright, post offices, coning money, territories and DC, declaring war, raising and supporting armies, providing and maintaining navy
1. Taxing and Spending Powers
2. Commerce Power


Enumerated Powers/ Taxing and Spending Powers

Congress may tax and spend for to provide for the general welfare (to promote general welfare, not just for general welfare)
- Includes any public purpose not prohibited by constitution, even if not within an enumerated power
Ex: tax on factory carbon emissions (though no enumerated power to regulate environment)
Ex: spending on schools for states following federal educational standards (though no enumerated power to regulate local education)
- Note “Strings” must relate to purpose of spending and not violate constitution
- Have to be related for strings
- Stings must not be so coercive that the state has no choice but to comply (state would have no real choice “bullet to head of states”)


Enumerated Powers/ Commerce Power

Congress may regulate commerce with:
1. Foreign Nations
2. Indian Tribes
3. Among the states


Interstate Commerce

(among the states)
Broadest and most common basis for regulation
- Channels of interstate commerce: highways, waterways, telephone lines, internet
- Instrumentalities of interstate commerce: planes, trains, automobiles, persons in interstate commerce
- Substantial effect on interstate commerce in aggregate (even purely local activities): growing wheat in backyard for home consumption (effect on national commerce)

Exception: non economic activity in area traditionally regulated by states


Delegation of Power to Agencies

may broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power
Ex: Delegation of authority to EPA to regulate air pollutants that “endanger public health or welfare”


Delegation of Power to President

no line item veto
Rationale: Violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to president to sign or veto)


Delegation of Power to Congress

no legislative veto to void duly enacted laws without bicameralism and presentment
Ex: law providing one chamber of congress may overturn agency regulations


Speech and Debate Clause

Members of congress enjoy immunity from civil and criminal liability for legislative acts
Ex: speeches on floor, voting, committee reports
Not: Bribes, speeches and publications outside of congress


Executive Power

Domestic Powers
Enforcement: President has power (and duty) to execute laws



- Ambassadors, Federal Judges and officers of the United States (ex: cabinet secretaries)
- President appoints
- Senate gives advice and consent by majority vote
- Inferior Officers
- Congress may vest appointment power in president, department heads or judiciary
- Ex: Undersecretary of State, assistant attorney general, independent counsel
- Congress may not appoint executive branch officials



- President may remove high-level executive officers (eg cabinet secretaries) at will (president appoints, he can fire at will)
- Congress may limit presidential removal of other executive officials to good cause
- Congress may not remove executive officials except through the impeachment process