Con Law Lecture I IA Bar Review
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Chelsie9051 on June 11, 2012
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59 terms
Terms | Definitions |
|---|---|
 What are the 4 requirements of Justiceability/"cases and controversies" | Standing, Ripeness, Mootness, Political question doctrine |
| Standing | Who may bring a suit- 4 Reqs. Injury, Causation and redressability, No third party standing, No generalized grievances |
| Injury | A plaintiff may only bring personalized injuries- either present or future, if shows likelihood of future harm (members need to walk through park) |
| Causation and redressability | Must prove Def caused injury, so that a fed court decision is likely to remedy the injury. Have to be able to prove the fed rule is the cause- think of the hospital/indigents- hard to prove. |
| No third party standing | plaintiff can't present claims of others- Exceptions. 1. close relationship (dr/patient, abortion case) 2. Injured party unlikely to be able to assert his or her own rights 3. Organization may sue for its members if the members would have standing, neither the claim or relief requires participation of members |
| No generalized grievance | plaintiff must not be suing solely as a citizen or taxpayer interested in having the government follow the law. Flast- taxpayer- has been narrowed- gov expenditures, not grants of property. No challenge to general executive revenue. Gov expenditure of money, not tax credits. Taxpayers have challenge to standing gov expenditure of money pursuant to a statute as violating the establishment clause. |
| Ripeness | Sometimes plaintiffs want declaratory judgment. Look at 2 criteria for judging ripeness: 1. Hardship plaintiff will suffer w/out pre-enforcement review and 2. Fitness of issues and the record for judicial review (does the court have everything it needs or should it wait? |
| Mootness | A plaintiff must present a live controversy/ongoing injury. if anything happens to end the plaintiff's injury, the case has to be dismissed as moot. |
| Exceptions to mootness doctrine | 1. Exception for wrongs capable of repetition but evading review. 2. Voluntary cessation- if def halts offending conduct, but is free to resume at any time, the case will not be dismissed as moot. 3.Class action suit- at least 1 member has ongoing injury. |
| The political question doctrine | 4 kinds of cases are non-justicable political questions. 1. "Republican form of government clause" 2. Challenges to president's conduct of foreign policy 3. Challenges to the impeachment and removal process 4. Challenges to partisan gerrymandering |
| Supreme Court Review | Cases come from the state courts by Certioari, US courts of appeals (discretionary review), by writ of Certiorari. Appeals exist only for SC review (vs. cert) by 3 judge fed dist courts. SC required to take and hear the case when review is requested (Skips US court of appeals). SC has original and exclusive jurisidiction over suits between state govs. (must be filed in SC) |
| SC review of a state court decision | if a state court decision rests on 2 gruonds- 1 fed and one state, if the SC reversal of the fed ground will not change the result, the SC can't hear the case. |
| Lower federal court review | State governments cannot be sued in federal or state court. The 11 amendment bars suits against states in federal court. Sovereign immunity bars suits against states in state courts or federal agencies. |
| Only 4 situations in which states may be sued | 1. Waiver- Must be explicit. 2. Pursuant to fed statutes adopted under section 5 of the 14th amendment- congress can't override soveriegn immunity using any of its other powers- 14th amend after and meant to be limit on state sov, so allow lawsuits against state under it. 3. Fed gov can sue state gov 4. State can't invoke soveriegn immunity in bankruptcy proceedings. |
| Suits against state officers are allowed | may be sued for injunctive relief, for money damages to be paid out of their own pockets, may NOT be sued if it is the state treasury that will be paying retroactive damages. |
| Abstention | Fed court may not enjoin pending state court proceedings. |
| Congress's power to act | There must be express or implied congressional power. Congress lacks the police power. - Exceptions. If it's legislating for the military, indian reservations, federal lands and territories, or the district of columbia. Think "Mild" |
| Necessary and proper clause | congress may choose any means not prohibited by the const to carry out its powers. |
| Taxing and spending power and the commerce power | Congress may tax and spend for the general welfare- may create any tax to raise revenue, or any program to expend it, that congress believes will promote the general welfare. |
| Congress may regulate commerce with indian tribes, foreign countries, and between the states. | 1. Congress may regulate the CHANNELS of interstate commerce (highways, waterways, internet) 2. May regulate instrumentalities and persons or things in interstate commerce (trucks, planes, telephones electricity, radiowaves, stock, insurance, cattle, people) 3. Activities that have a substantial effect on interstate commerce (wheat case, cumulative effects). In the area of non-economic activities, substantial impact can't be found in cumulative effects. |
| 10th amendment- powers reserved tot he states or people | Congress cannot compel state regulatory or legislative action. (congress can't commandeer or conscript states) But congress can INDUCE state gov to act through use of grants etc. so long as the conditions are expressly stated and related to the purpose of the spending program. |
| Congress may prohibit harmful commercial activity by state governments | states were selling their DMV lists- so congress did not impose an affirmative duty or burden, but prohibited state gov from doing something |
| Congress power under 14(5) | congress may not create new rights or expand the scope of rights. May only act to prevent or remedy violations of rights recognized by the courts and such law must be proportionate and congruity to remedying constitutional violations. |
| Delegation of powers | No limit exists on congress's ability to delegate legislative powers. |
| Legislative vetos, or line item vetos | President must sign or veto a bill in its entirety after passage in both the house and the senate (bicameralism) and presentment. Legislative veto- is when congress attempts to over turn executive action w/out bi cameralism and or presentment- this is unconstitutional. |
| Line item veto | Pres attempts to veto part of the bill. unconstitutional. |
| Congress may not delegate itself or it's officers executive power | like the power to enforce or implement the law. |
| The federal executive power | Foreign policy, executive agreements |
| Treaties | Between US and foreign country, negotiated by the president, effective when ratified by the senate. State laws that conflict with treaties are invalid. If a treaty conflicts with a federal statute, the one last in time controls. treaties are invalid if they conflict with the constitution. |
| Executive agreements | Effective when signed by the President and head of a foreign nation. can be used for any purpose- anything that can be done by a treaty can be done by an executive agreement. Executive agreements prevail over state law, but never over conflicting federal laws or the constitution. The president has broad powers as commander in cheif to use american troops in foreign countries. |
| Domestic affairs: appointment and removal powers | The presidence appoints ambassadors, federal judges, and office of the US. Congress may vest the appointment of inferior office in the president, heads of departments, or the lower federal courts. Congress may ntot give itself or its officers appointment power. |
| What makes an officer an inferior officer? | Inferior offices can be fired by office. AG can fire under- officers. etc. |
| Removal power | Unless removal is limited by statute, the president may fire any executive branch official.Exception: For congress to limit removal, it must be an office where independence from the president is desirable,(independant counsel vs. cabinet) and cannot prohibit removal, it can limit removal to where there is good cause. |
| Impeachment and removal | the president, vice president and federal judge and officers of the united states can be impeached and removed from office for treason, bribery, or for high crimes and misdemeanors. |
| Impeachment does not remove a person from office. | only if the senate convicts is there a removal from office. the house of reps impeaches, but need |
| Impeachment requires majority vote | Conviction in senate requires 2/3 vote. |
| Pres has immunity from civil suits for money damages for anything done while in office, carrying out office of presidency | No immunity for acts prior to taking office, |
| Executive privilege keeps pres papers and conversations private | but such privilege must yield to other important government interests. |
| Pardon power | president has the power to pardon those accused or convicted of federal crimes, never state crimes. Only as to criminal liability, never civil liability |
| Federalism | challenges to something state and local government has done. |
| Pre-emption | Article 6- Supremacy clause- federal law wins. |
| Express pre-emption | a federal statute says explicitly that federal law is exclusive, then state and local laws are pre-empted. |
| Implied pre-emption | can be found by : 1. if fed law and state law are mutually exclusive, then state law is pre-empted.However, States may set environmental standards stricer than federal law unless congress has clearly prohibited this. 2. If the state law impedes the achievement of a federal objective, it is preempted. 3. If congress evidences a clear intent to preempt state law, then it is preempted. |
| States may not tax or regulate federal government activity | fed gov never has to comply with state pollution control laws. |
| Dormant commerce clause | principle that state and local laws are ucnosnt if they place an undue burden on interstate commerce. Authorizes congress to adopt laws effecting interstate commerce, and sets a limit on what state and local gov can do. |
| Who is the actor? | Does congress have authority to act? Is it the state or local gov? state or local- violating dormant? |
| Negative implications of commerce clause | same thing as dormant commerce clause |
| privileges and immunities under article 4 | no state can deny citizen of another state of the privileges and immunities it accords its own citizens. discriminating against out of staters. |
| The privileges or immunities clause under the 14 amend | always the wrong answer unless the question involves the right to travel. No state shall deprive any citizen of the privileges or immunities of US citizen ship. Slaughterhouse cases--narrow. Not discriminating against out of staters. Cali case- chills right to travel. |
| Analysis if they law does not discriminate against out of staters | The privileges and immunities of Article 4 do not apply. If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits. |
| Analysis if does discriminate against out of staters | if the law burdens interstate commerce, it violates the commerce clause unless it is necessary to achieve an important governmental purpose. must show that no less discriminatory alternative could achieve its objective. Exception- Congressional approval. Exception- Market Participant exception- tuition considered gov benefit program. |
| If the law discriminates out of staters with regard to their ability to earn livelihood | violates priv and immunities clause of article 4 unless it is necessary to acheive gov purpose. Law must discriminate against out of staters. Discrimination must be with regard to civil liberties or important economic activities. shrimp fishing license. bar license. Corporations and aliens cannot use the privileges and immunties clause. if corp, only dormant commerce clause. if citizen, dormant commerce clause and privileges and immunities. Discrimination allowed only to acheive important gov purpose. Substantial interest being served. |
| state taxation of interestate commerce | states may not use tax system to to help instate businesses. A state may only tax activities if there is a substantial nexus to the state. State taxation of interest business must be fairly apportioned. |
| Full faith and credit | court from one state must enforce the judgment of another state as long as: the original court had personal and subj matter juris, it was a judgment on the merits, and the judgment was final. |
| Individual liberties analysis | Is there gov action? Constitution may by statute apply constitutional norms to private conduct, 13th amend can be used to prohibit race discrimination, commerce clause can be used to apply const norms to private conduct, congress cannot use section 5 of the 14th amendmend to regulate private behavior. |
| These 4 bills of rights are not incorporated by the 14th | right to not have a soldier quartered in a person's home. 5th amendment right o grand jury indictment in criminal cases. 7th amendment right to jury trial in civil cases. The 8th amendment right against excessive fines. |
| Rational basis test | law is RATIONALLY related to a LEGITIMATE (conceivable) government purpose. gov usually wins, deferential to gov. challenger has burden of proof |
| Intermediate scrutiny | law is upheld if it is SUBSTANTIALLY related to an IMPORTANT gov purpose. means must be narrowly tailored to meeting the objective. very good way of acheiving the goal. |
| Strict scrutiny | necessary to achieve a compelling gov. purpose, and must persuade the court that these are the least restrictive means necessary to achieve the purpose. gov has burden of proof. |
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