Powers of the Branches of Government Flashcards
(148 cards)
1
Q
What is an Article III court?
A
Article III courts are established by Congress.
2
Q
Can Congress define the jurisdiction of federal courts?
A
Yes, but Congress is bound to the standards set forth in Article III concerning subject matter jurisdiction, party jurisdiction, and the “case or controversy” requirement.
3
Q
May a federal court issue an advisory opinion?
A
No.
4
Q
What is an advisory opinion?
A
An advisory opinion is a decision that lacks an actual dispute between the parties or any legally binding effect on the parties.
5
Q
What is the “case or controversy” requirement?
A
A “case or controversy” must not request an advisory opinion, must be ripe and must not be moot.
6
Q
When is a case ripe?
A
A case is ripe when laws and policies have been formalized and can be felt in concrete ways.
7
Q
When is a pre-enforcement challenge ripe?
A
A pre-enforcement challenge is ripe when the issues are fit for judicial decision and the plaintiff would suffer substantial hardship in the absence of review.
8
Q
What does it mean to be fit for judicial decision?
A
Fitness for judicial opinion means that the case does not rely on uncertain or contingent future events. Generally, the issues are legal in nature rather than factual.
9
Q
When is a case moot?
A
A case is moot when the plaintiff is no longer suffering an ongoing injury.
10
Q
When must a live controversy exist?
A
A live controversy must exist at all stages of review.
11
Q
When is a case not considered moot even if the injury has passed?
A
(1) the controversy is capable of repetition but is evading review due to an inherently short duration
(2) the defendant voluntarily stops the offending practice but is free to resume it
(3) class actions in which the class representative’s case is moot but at least one class member’s claim is still viable
12
Q
When must a party have standing?
A
A party must have standing at all phases of litigation, including on appeal.
13
Q
What are the components of standing?
A
The components of standing are injury, causation, and redressability.
14
Q
What injury must a person show to have standing?
A
A person must show an injury in fact which is a particularized and concrete (not hypothetical) injury.
15
Q
Is there standing based on taxpayer status?
A
No, because the injury is too generalized. However, a taxpayer may challenge her tax bill.
16
Q
Is there standing based on citizenship status?
A
No, unless:
(1) the claim alleges federal action violated 10A by interfering with powers reserved to the states and the injury is redressable, or
(2) the claim challenges congressional spending on Establishment Clause grounds.
17
Q
May a claimant assert standing for others?
A
In general, a claimant may not assert standing for third parties. However, a claimant with standing in her own right may assert the rights of a third party if (1) it is difficult for the third party to assert his rights, or (2) a close relationship exists between the claimant and the third party.
18
Q
Does an organization have standing on behalf of its members?
A
An organization has standing on behalf of its members when (1) there is an injury in fact to the members, (2) the members’ injuries are related to the organization’s purpose, and (3) individual member participation in the lawsuit is not required.
19
Q
When does a person have standing to bring a claim for speech overbreadth?
A
Unless the restriction applies to commercial speech, a person has standing to bring a free speech claim, even if that person’s own speech would not be protected under 1A.
20
Q
What is rederssability?
A
An injury is redressable if a decision on the plaintiff’s case would alleviate the plaintiff’s harm.
21
Q
May Congress eliminate the case or controversy requirement?
A
No, but Congress can create new interests, an injury to which may be sufficient for standing.
22
Q
Does a plaintiff have standing to enforce a federal statute?
A
Yes, if the plaintiff is within the zone of interests that Congress meant to protect, and that Congress intended a private right of action.
23
Q
May a plaintiff bring a test case?
A
Yes. Standing is not defeated by a plaintiff’s knowing triggering of an application of a rule to test its constitutionality.
24
Q
What is sovereign immunity?
A
Sovereign immunity, reflected in 11A, bars a private party from suing a state or the federal government or their agencies.
25
What are the exceptions to sovereign immunity?
(1) express waiver
(2) structural waiver
(3) actions against local governments
(4) suits of one state against another and suits of the federal government against a state
(5) bankruptcy
(6) state officials
(7) congressional removal of immunity
26
What is structural waiver of sovereign immunity?
Structural waiver applies when a federal power is complete in itself and the states implicitly consented to the federal government exercising that power as part of the plan of the Constitution (e.g. eminent domain and military powers).
27
When can a person sue a state official?
A person can sue a state official for prospective damages personally or to enjoin the official from future conduct that violates the law. Retroactive damages are not available.
28
When will a federal court abstain from deciding a constitutional question?
A federal court will abstain temporarily when the disposition rests on an unsettled question of state law. A federal court will not enjoin state criminal proceedings except in cases of proven harassment or bad faith prosecutions.
29
What are political questions?
Political questions are issues constitutionally committed to another branch or inherently incapable of judicial resolution (e.g. challenges to procedures for ratifying amendments, Presidential conduct of foreign policy, political gerrymandering).
30
Which cases does the Supreme Court have original jurisdiction over?
SCOTUS has original jurisdiction over all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party.
31
Which original jurisdiction cases do lower federal courts have concurrent jurisdiction over?
Congress has given concurrent jurisdiction over all original jurisdiction cases except those between states.
32
How do cases come to SCOTUS?
Cases come to SCOTUS by a writ of certiorari or by appeal of decisions to grant or deny injunctions made by three-judge district court panels.
33
Which cases come to SCOTUS by a writ of certiorari?
Cases that come to SCOTUS by writ of certiorari include
- cases from the highest court capable of providing a decision where (1) the constitutionality of a federal statute, treaty, or state statute is in issue, or (2) a state statute allegedly violates federal law, and
- all cases from federal courts of appeals.
34
What happens if SCOTUS finds adequate and independent state grounds?
SCOTUS will not exercise jurisdiction if the state court judgment is based on adequate and independent state grounds, even if federal issues are involved.
35
What powers may Congress exercise?
Congress may exercise the powers enumerated in Article I, Sec. 8 and any powers necessary and proper to carrying out the enumerated powers.
36
Is there a federal police power?
No, except in DC, federal lands (US possessions), military bases, and Indian reservations.
37
What is necessary and proper to carry out enumerated powers?
Necessary and proper means appropriate or rational.
38
What is the taxing and spending power?
Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution.
39
Can Congress legislate general welfare?
No, it can only tax and spend for the general welfare.
40
When are conditions valid on a Congressional grant of money to state or local governments?
Conditions are valid if they are clearly stated, relate to the purpose of the grant, are not unduly coercive, and do not otherwise violate the Constitution.
41
When are taxes valid?
Taxes are valid if they have some reasonable relationship to revenue production or to promoting the general welfare.
42
When is a tax an impermissible penalty?
A tax is an impermissible penalty when it seeks to compel rather than simply influence behavior.
43
What is the commerce power?
Congress has the power to regulate foreign and interstate commerce as well as commerce with the Indian tribes.
44
What may Congress regulate within the Commerce Clause power?
Congress may regulate
(1) the channels of interstate commerce
(2) the instrumentalities of interstate commerce
(3) people and things in interstate commerce
(4) economic activities that have a substantial affect on interstate commerce (may be aggregated)
45
May noneconomic activities be aggregated to determine if there is a substantial effect on interstate commerce?
No.
46
May Congress regulate noneconomic intrastate activity?
No, 10A precludes Congress from regulating noneconomic intrastate activity in areas traditionally regulated by state and local governments.
47
May Congress regulate inactivity?
No, Congress does not have the power to compel activity.
48
May Congress prohibit private discrimination under its Commerce Clause power?
Yes, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce.
49
Who has the power to declare war?
Congress has the power to declare war.
50
Does war justify economic regulation?
Yes, economic regulation during war and in the postwar period have been upheld.
51
What court reviews military cases?
The Court of Appeals for the Armed Forces.
52
Can Congress deny habeas to alien combatants?
No, unless there is a meaningful substitute.
53
Who do military courts have jurisdiction over?
Military courts have jurisdiction over offenses committed by members of the armed services. They also have jurisdiction over civilians in times of active war.
54
What is Congress's investigatory power?
Congress has broad power to investigate for the purpose of legislation or other official action.
55
Can Congress subpoena the president's personal information?
Yes, pursuant to the investigatory power, but only if there is a legitimate legislative purpose.
56
What power does Congress have over US property (like the territories)?
Congress can dispose of and make rules for territories and other properties. Federal takings must be pursuant to an enumerated power.
57
What is the postal power?
Congress has exclusive postal power. It may not deprive any citizen of a general mail privilege.
58
Who may establish rules of naturalization?
Congress.
59
Can Congress exclude aliens?
Yes, aliens have no right to enter the US. However, resident aliens must be given notice and a hearing before deportation.
60
Can Congress take away citizenship?
Not without the citizen's permission.
61
Who has admiralty power?
Congress has plenary and exclusive admiralty power unless Congress leaves maritime matters to the states.
62
Who has the power to coin money, fix weights and measures, and issue patents and copyrights?
Congress.
63
May Congress delegate power to the executive branch?
Yes. Congress may delegate to the executive branch so long as intelligible standards are set and the power isn't uniquely confined to Congress.
64
What is the Major Questions Doctrine?
When an agency adopts regulations with an extraordinary economic and political significance, the agency must be able to point to clear congressional authorization for the exercise of the power, otherwise it will be struck down.
65
May Congress give the President a line-item veto?
No, the president can only approve or reject a bill in toto.
66
May Congress retain a legislative veto?
No. Congress may not give itself authority to amend or repeal an existing law without bicameralism and presentment.
67
What is bicameralism and presentment?
A bill must be approved by both houses of Congress and sent to the president for signature or veto.
68
When is a legislator's speech immune?
A legislator's conduct is immune when it occurs in the regular course of the legislative process.
69
What legislative conduct is not immune?
Bribes, speeches outside Congress, republication of statements made in Congress
70
When is presidential authority at its maximum?
Presidential authority is at its maximum, and action is likely valid, when the President acts with the express or implied authority of Congress.
71
When is presidential authority at its lowest point?
Presidential authority is at its lowest point, and action is likely invalid, when the President acts against the express will of Congress and Congress had authority to act.
72
What is the twilight of presidential power?
The twilight is where the President acts where Congress is silent.
73
When will action taken in the twilight of presidential power be invalid?
The action will not be upheld if the President usurps power from another branch of government or prevents another branch from carrying out its tasks.
74
Can the president impound funds?
No. The president has now power to refuse to spend funds appropriated by Congress when Congress mandates the funds be spent.
75
How are ambassadors, SCOTUS justices, and other officers of the US apporinted?
They are appointed by the president with the advise and consent of the senate.
76
May Congress appoint members of an executive body?
No.
77
Which executive officers be removed by the President?
The president may remove high level, purely executive officers and heads of independent agencies at will. Congress can restrict removal of all other executive appointments.
78
May Congress remove executive officers?
Congress may remove executive officers through the impeachment process.
79
What offenses may a President pardon?
The president may pardon all federal offenses except impeachment and civil contempt.
80
Can Congress limit the pardon power?
No.
81
Can a bill become law if vetoed by the President?
Yes, if 2/3 of each house of Congress votes to override the veto
82
What is a pocket veto?
A president has 10 days to exercise the veto power. If he does not, the bill is automatically vetoed if Congress is not in session.
83
May a president declare war?
No, but he may act militarily in hostilities against the US without a declaration of war to protect US interests pursuant to the commander-in-chief clause.
84
How may a challenge to the President's commander in chief powers be brought?
These challenges could not be brought because they would be considered nonjusticiable political questions.
85
Who has power to enter treaties?
The president has power to enter treaties with the advice and consent of 2/3 of the senate.
86
When are treaties the supreme law of the land?
Treaties are the supreme law of the land when they are self-executing (effective without implementation by Congress).
87
May a state law conflict with a self-executing treaty?
No, state laws that conflict with a self-executing treaty are invalid.
88
What happens if a valid federal law and a valid treaty conflict?
The last in time prevails.
89
May a treaty conflict with the Constitution?
No.
90
What is an executive agreement?
An executive agreement is an agreement signed by the president and the head of a foreign country.
91
Do executive agreements require consent of the senate?
No.
92
What happens if a state law conflicts with an executive agreement?
The executive agreement prevails.
93
What if a federal law conflicts with an executive agreement?
The federal law prevails.
94
What is executive privilege?
The president has a privilege to keep certain presidential communications secret, particularly to protect national security.
95
Are there exceptions to executive privilege?
Yes. In a criminal proceeding, where the need for such information is demonstrated by the prosecution.
96
May states subpoena a president's records?
Yes, in state criminal proceedings.
97
What is executive immunity?
The president has absolute immunity for civil damages for actions taken while exercising official responsibilities.
98
When may an officer of the US be impeached?
An officer of the US may be impeached for treason, bribery, high crimes and misdemeanors. A majority vote in the House is required to bring charges and 2/3 vote of the Senate is required to convict and remove from office.
99
When are powers expressly federal?
Some enumerated powers are expressly federal because the Constitution limits or prohibits use of the power by states.
100
When is a power inherently federal?
A power is inherently federal when the nature of the power is such that it can be exercised only by the federal government.
101
What powers are held by the states?
Under 10A, all powers not granted to the federal government are reserved for the states.
102
What is general police power?
General police power is the power to regulate the health, safety, and welfare of the people.
103
Do states have general police power?
Yes.
104
When will laws passed pursuant to a state's general police power be upheld?
Laws will be upheld if rational, unless they burden a suspect or quasi-suspect classification.
105
May Congress require a state to enact certain laws or enforce federal laws?
Generally, no. Under 10A, Congress can't commandeer a state to act in a particular way. However, under 14A, Congress can restrict states from discriminating in violation of equal protection or from depriving rights protected by due process.
106
Is a tax or regulation on state or government entities valid?
No, because of 10A, unless the tax or regulation applies to private actors (businesses) also.
107
What is intergovernmental immunity?
Based on the Supremacy Clause, states cannot interfere with or control operations of the federal government.
108
May a state tax federal instrumentalities?
Not directly, unless Congress consents. Indirect taxes are allowed if they don't impermissibly burden the federal government.
109
What is express preemption?
Express preemption occurs when a federal law says that states may not adopt laws concerning the subject matter of the law.
110
When is a state law impliedly preempted?
A state law is impliedly preempted when (1) state law conflicts with federal law such that it would be impossible to follows both laws or (2) state law prevents achievement of a federal objective, even if the state law was not intended to frustrate federal law.
111
What is field preemption?
Field preemption occurs when a valid federal law occupies an entire field, barring any state or local law, even if the state or local law does not conflict.
112
What is the presumption against preemption?
In all cases of preemption, courts start with a presumption that state police powers are not to be preempted unless there was a clear and manifest purpose of Congress.
113
What is the Interstate Compact Clause?
The interstate compact clause concerns agreements between states. Congressional approval is needed if an agreement increases state's power at the expense of the federal government
114
What is the Article IV Privileges and Immunities Clause?
The Article IV Privileges and Immunities Clause prohibits discrimination by a state against nonresidents when the discrimination concerns important commercial activities or fundamental rights.
115
Who is excluded from the protection of the Article IV Privileges and Immunities Clause?
Corporations and aliens are excluded from the protection of the Article IV Privileges and Immunities Clause.
116
What is the standard of review for the Article IV Privileges and Immunities Clause?
If a state law burdens an important commercial activities or fundamental right, it will be invalid unless the law is necessary to achieve an important governmental interest and there are no less restrictive means available.
117
What is the Privileges and Immunities Clause of 14A?
States may not deny their citizens the privileges and immunities of national citizenship (petition Congress, vote for federal officers, interstate travel).
118
Is anyone excluded from the Privileges and Immunities Clause of 14A?
Yes, corporations are excluded.
119
May a state regulate commerce?
If Congress has not enacted a law on the subject, a state may regulate local aspects of interstate commerce as long as it does not discriminate against or unduly burden interstate commerce.
120
What is the Dormant Commerce Clause?
Even where the Congress has not acted, the Commerce Clause may restrict state regulation of interstate commerce.
121
May a state discriminate against interstate commerce to favor local interests?
Generally, no unless the regulation is necessary to protect an important state interest and there are no reasonably nondiscriminatory alternatives available..
122
Is a nondiscriminatory regulation valid under the dormant commerce clause?
If a nondiscriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate of a legitimate local interest.
123
How are laws of corporate governance affected by the dormant commerce clause?
A different standard applies to these laws. They are likely to be upheld even if they heavily burden interstate commerce.
124
May Congress permit a state to violate the commerce clause or other constitutional provisions?
Congress can permit a state to violate the commerce clause but not other constitutional provisions.
125
When may a state prefer its own citizens?
A state may prefer its own citizens when it acts as a market participant (hiring, buying, selling, giving subsidies, etc.)
126
When is a more lenient standard applied to the Dormant Commerce Clause analysis?
A more lenient standard is used when a law favors government action that involves performance of a traditional government function (e.g. waste disposal).
127
What may a state regulate under 21A?
Under 21A, a state may regulate importation of liquor and the conditions under which it is sold.
128
Are regulations subject to 21A also subject to the Commerce Clause?
Yes.
129
May the federal government regulate liquor?
Yes, under the commerce power or the spending power.
130
May states regulate foreign commerce?
Generally, no. With a few exceptions, only Congress can regulate foreign commerce.
131
Can a state pass a tax that discriminates against interstate commerce?
No. State taxes that discriminate against interstate commerce violate the commerce clause.
132
Can a state pass a tax that does not discriminate against interstate commerce?
A state can pass a nondiscriminatory tax if:
(1) the activity taxed has a substantial nexus to the state
(2) the tax is fairly apportioned according to a rational formula
(3) the tax fairly relates to the services or benefits provided by the state
133
When does an activity have a substantial nexus with a state for the purposes of state taxation?
A substantial nexus exists when a business avails itself of the privilege of doing business in the state.
134
What is a use tax?
A use tax is a tax imposed on goods purchased outside the state.
135
Are use taxes valid?
Yes.
136
Can a state require an interstate seller to collect use taxes?
Yes, if the seller has a substantial nexus with the state.
137
What is sales tax?
Sales tax is a tax imposed on the seller of goods for sales.
138
What is ad valorem tax?
Ad valorem taxes are property taxes based on the assessed value of the property.
139
May commodities in interstate transit be taxed by a state?
No.
140
When is an ad valorem tax on instrumentalities of interstate commerce valid?
Ad valorem taxes on the instrumentalities of interstate commerce are valid if
(1) the instrumentality has acquired a taxable situs in the taxing state (sufficient contacts)
(2) the value of the property has been properly apportioned according to the contacts with each taxing state
141
How much ad valorem tax may the taxpayer's domiciliary state assess to instrumentalities of interstate commerce?
The taxpayer's domiciliary state may tax the full value of the instrumentalities, unless the taxpayer can prove the property has a taxable situs elsewhere.
142
Can a state impose privilege, license, or occupational taxes?
Yes, as long as
(1) the activity taxed has a substantial nexus to the state
(2) the tax is fairly apportioned according to a rational formula
(3) the tax fairly relates to the services or benefits provided by the state
(4) the tax does not discriminate against interstate commerce.
143
Must a state consent to a suit by the United States?
No, the United States may sue a state without its consent.
144
May a state sue the United States?
No, unless Congress passes a law allowing it.
145
When is a suit against a United States officer considered to be against the United States?
A suit against a federal officer is considered a suit against the United States if the judgment would be satisfied out of the public treasury or it would interfere with public administration.
146
When is specific relief against an officer of the United States permitted?
Specific relief is permitted when the officer acts beyond his authority.
147
May a state sue another state without the latter's consent?
Yes.
148
What is Full Faith and Credit?
Under the Full Faith and Credit Clause, state court judgments must be recognized in other states if
(1) the court that rendered the judgment had personal and subject matter jurisdiction
(2) the judgment was on the merits
(3) the judgment was final
