Con Law (DONE) Flashcards
Federal Judicial Power
• Source: Article III
• Limit: Actual cases and controversies
• Doctrine: Justiciability, whether a 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).
FJP/Advisory Opinions
Rule: Federal courts may not render advisory opinions,
which lack:
• An actual dispute between adverse parties, or
• Any legally binding effect on the parties.
FJP/Ripeness
Ripeness (too early)
• Rule: Federal courts may only decide controversies
that are ripe for judicial review.
• Application: Pre-enforcement review of laws
(declaratory judgment actions) are generally not
ripe, unless,
• Substantial hardship in absence of review (the
more the better), and
• Issues and record are fit for review (the more
legal than factual the better).
FJP/Mootness
Mootness (too late)
• Rule: Federal courts may only decide live controversies, i.e., plaintiff suffers ongoing injury
Application: Live if:
• In suit for injunctive or declaratory relief, challenged
law or conduct continues to injure.
• In suit for damages, plaintiff not made whole.
Exceptions: Though injury has passed, not moot if:
• Injury is capable of repetition yet evades review
because of inherently limited duration.
• Defendant voluntarily ceases challenged activity,
but may restart at will, or
• In class actions, one plaintiff suffers ongoing
injury.
FJP/Standing
Rule: Plaintiff must have standing to sue. • The standing requirements are: • Injury • Causation • Redressability
FJP/Standing/Injury - What Constitutes Injury?
Almost any harm that is concrete (not hypothetical) and particularized (not general).
EXAMPLES: 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. (Lujan, 1992)
• Taxpayer may not sue over how government
spends tax revenues.
• Official proponents of ballot initiative may
not defend enacted measure. (Perry, 2013)
EXCEPTIONS:
• Taxpayer challenge to own tax liability.
• Congressional spending in violation of
Establishment Clause. (spending money to support religious institutions)
— Not executive spending.
FJP/Standing/Injury - When Injury Must Occur
Injury must have occurred or will imminently occur.
• Injunctive or declaratory relief: must show likelihood
of future harm.
FJP/Standing/Injury - Who Must Suffer Injury
Injury must be personally suffered by plaintiff rather
than those not before court.
• No third-party standing.
FJP/Standing/Injury - Third Party Standing Exceptions
SEE CHART AND COPY INFO HERE (p. 6)
FJP/Standing - Causation
Plaintiff must show that the injury is fairly traceable to
the defendant’s behavior.
EXAMPLE: No causation where parents of black public schoolchildren challenged IRS failure to deny tax breaks to discriminatory private schools, claiming breaks caused public schools to be less integrated. (Allen, 1984)
FJP/Standing - Redressability
Plaintiff must show that a favorable court decision can
remedy the harm (e.g., through money damages or an
injunction).
EXAMPLE: No redressability where mother challenged state’s failure to prosecute for non-payment of child support, claiming loss of child support from lack of prosecution. Winning would only result in father going to jail, and no child support would be recovered. (Linda R. S., 1972)
FJP/Sovereign Immunity (11th Amendment)
SEE CHART IN NOTES AND COPY (p. 8)
FJP/Supreme Court Review
1) Final judgment rule
2) Independent and Adequate State Grounds
FJP/SCR - 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.
FJP/SCR - Independent and Adequate State Grounds (ISAG)
Supreme Court will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state law ground.
IASG exists if the outcome would be the same regardless of how the federal question is decided.
Federal Legislative Power
Source: A1, s.8
Limit: Enumerated powers. Unlike states, Congress has no general police power to pass laws.
- Exception: federal land, Indian reservations, D.C.
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.
Example: 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. (As long as Congress argues that doing so is N&P, then they can do it.)
FLP - Enumerated Powers
1) Taxing and Spending Powers
2) Commerce Power
(MORE IN LONG OUTLINE
FLP/Enumerated Powers - Taxing and Spending Power
Congress may tax and spend to provide for the general welfare.
• Includes any public purpose not prohibited by
Constitution, even if not within an enumerated
power
EXAMPLES:.
• Tax on factory carbon emissions (no enumerated
power to regulate environment).
• Spending on schools for states following federal educational standards (no enumerated power to regulate local education).
• Tax on failure to purchase health insurance (no commerce power to compel purchase). (Sibelius, 2012)
FLP/EP/Taxing and Spending Power - Spending Conditions
• “Strings” must relate to purpose of spending and not violate Constitution. (Example: Cannot condition school spending on highway speed limits; highway spending on educational standards; or any spending on suppression of government criticism.)
• Strings cannot be “unduly coercive.” (Example: Withholding current Medicaid funding (over 10% state
budgets) if state refuses to participate in new Medicaid expansion under health care law. (Sebelius, 2012))
FLP/EP - Commerce Power
Rule: Congress may regulate commerce:
• Foreign nations
• Indian tribes
• Among states
FLP/EP/CP - Interstate Commerce
Broadest and most common basis for regulation. IC
includes:
• Channels of IC: highways, waterways, telephone
lines, Internet
• Instrumentalities of IC: planes, trains, automobiles,
persons in interstate commerce
• Substantial effect on IC in aggregate (even
purely local activities)
— E.g., growing wheat in backyard for home
consumption. (Wickard, 1942)
FLP/EP/CP - Interstate Commerce Limits
• Noneconomic activity in area traditionally
regulated by states.
• Compelling participation in commerce (even
if lack of participation substantially affects IC).
FLP/EP/CP - 14th Amendment Enforcement Power
Commerce power allows Congress to indirectly ban
private discrimination. Congress may directly ban
state discrimination under its 14A power to enforce the guarantee of equal protection.
EXAMPLE: Congress may authorize private suits against state governments for employment discrimination on basis of race, gender, and religion. (Bitzer, 1976, Title VII)
Federal Legislative Power - Delegation of Powers
-
FLP/DOP - To Agencies
May broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power.
EXAMPLE: Delegation of authority to EPA to regulate air pollutants that “endanger public health or welfare.”
FLP/DOP - 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).
FLP/DOP - To Congress
No legislative veto to void duly enacted laws without
bicameralism and presentment. (Chadha, 1983)
EXAMPLE: Law providing one chamber of Congress may overturn agency regulations. (NOT ALLOWED, must pass another law to override an existing law.)
Federal Executive Power
Source: Article II
1) Domestic Powers
2) Foreign Powers
FEP - Domestic Powers
ENFORCEMENT: President has power (and duty) to execute laws.
Inherent (Implied) Presidential Powers
- Highest where authorized by Congress
- Lowest where prohibited by Congress
- Gray area where neither
FEP/DP - Implied Presidential Powers
Highest success where Pres. claims powers that are authorized by Congress (additive)
Lowest success where Pres. claims powers that are prohibited by Congress (subtractive)
Gray area where neither are the case
FEP - Foreign Powers
1) War
2) Treaties and Executive Agreements
FEP/Foreign Powers - War
• Congress alone has power to declare war.
• President as Commander in Chief has broad discretion to deploy troops internationally to protect
American lives and property (e.g., Vietnam).
— Challenges are likely non-justiciable as a political
question.
FEP/Foreign Powers - Treaties and Executive Agreements
SEE CHART ON P.17
Federalism
-
Federalism - 10th Amendment
Powers not granted to United States, or prohibited to
the states, are reserved to the states or the people.
• General Police Powers: reserved to states.
— Local health, safety, and economic regulations
receive rational-basis review unless they burden
a fundamental right or (quasi-)suspect class.
• Anti-Commandeering Principle: Congress cannot
compel states to enact or administer federal programs.
EXAMPLES: Congress CANNOT:
• Requiring states to enact environmental regulations.
(New York, 1992)
• Requiring local law enforcement to conduct background checks for federal handgun law. (Printz, 1997)
• Banning states from legalizing sports gambling (Murphy v. NCAA, 2018)
• EXCEPTION (not commandeering): non-coercive spending conditions.
Federalism - Supremacy Clause
Supremacy Clause of Article VI makes federal law preempt inconsistent state and local laws.
• Federal law: Constitution, statutes, regulations,
treaties, executive agreements.
Federalism - Preemption
• Express: Congress expressly says so.
• Implied
— Conflict: (i) Impossible to follow both federal
and state law; or (ii) state law impedes federal
law.
— Field: Extensive federal regulation indicates
congressional intent to “occupy the field.”
Federalism - Dormant Commerce Clause (Privileges & Immunities of Article IV overlap, Privilege or Immunities of 14A)
(“Negative Commerce Clause”) prohibits state laws
that discriminate against or unduly burden interstate
commerce.
P&I Art. IV: (“The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States”) prohibits state laws that discriminate against out-of-state U.S. citizens re:
• important commercial activities (earning livelihood),
or
• fundamental rights.
SEE CHARTS ON p. 20-21
Federalism - DCC Test
Discriminatory laws (favoring in-state over out-of-state commerce) are invalid unless: • necessary to achieve important gov purpose (unrelated to economic protectionism), and • no less discriminatory alternatives.
Non-discriminatory laws (evenly applied to in-state and out-of-state commerce) are valid unless burden on IC clearly outweighs non-protectionist benefits.
- is there a rational basis?
EXCEPTIONS when Congress can burden IC:
• congressional approval
• market participant (if states are acting directly as buyer or seller of interstate commerce)
Federalism - P&I Test
REQUIRES A U.S. CITIZEN
Discriminatory laws (favoring in-state over out-of-state citizens) are invalid unless: • necessary to achieve important gov purpose, and • no less discriminatory alternatives.
NO EXCEPTIONS
Federalism - Privileges OR Immunities under 14A
• Fundamental right to interstate travel.
— Right to enter/leave a state.
— Equal treatment once become permanent resident
of state.
- No fundamental right to international travel.
- Right to petition federal government.
(Treating residents as a different class based on history of citizenship)
Constitutional Framework for Protection of Individual Liberties
1) Application and Incorporation
2) State Action
3) Levels of Scrutiny
Individual Liberties - Application and Incorporation
• Except for 13A ban on slavery, Constitution applies
only to government action, not private conduct.
• Bill of Rights originally applies only to federal government.
• Most protections have been incorporated against
states (and their political subdivisions) through the
Due Process Clause of the 14A.
• Not (Yet): 3A right not to have soldiers quartered in
home, 5A right to grand jury indictment, 7A right to
jury in civil cases.
Individual Liberties - State Action
Easy Examples
• State law.
• State officials acting officially (even if unlawfully).
Other Examples Public Function: • Rule: state action exists when private party performs function done by government • traditionally and • exclusively.
STATE INVOLVEMENT RULE: Significant state involvement in challenged private conduct (e.g., assistance, encouragement, supervision, entwinement, or approval) may count as state action.
Individual Liberties - Levels of Scrutiny
MEMORIZE CHART ON P. 26
Procedural Due Process - Provisions
• Fifth Amendment Due Process Clause applies to
federal government.
• Fourteenth Amendment Due Process Clause applies
to states (and localities).
GENERAL RULE: Individual has right to a fair process when government acts to deprive of life, liberty, or property.
Procedural Due Process - Was there a deprivation of life, liberty, or property?
DEPRIVATION: Intentional (or perhaps reckless) rather than negligent.
LIBERTY:
• Physical freedom (e.g., from institutionalization,
deportation).
• Constitutional rights (e.g., parental rights).
• Not: mere harm to reputation.
PROPERTY:
• Real and personal, tangible and intangible.
• Government entitlement to which an individual has
a reasonable expectation of continued receipt.
EXAMPLES:
welfare benefits, public education, government licenses, tenured employment or term employment for duration of term.
Not: at-will employment.
Procedural Due Process - If Deprived, What Process is Due?
- Notice
- Opportunity to be heard
- Neutral decision-maker
Notice: Reasonably calculated to inform person of deprivation
Hearing: Pre-deprivation hearing generally preferred unless impracticable.
BALANCING TEST: determine nature and extent of procedures, considering:
• Importance of interest to individual
• Risk of error through procedures used
• Accuracy gain from additional procedures
• Burden on government (e.g., inefficiency and costs)
Substantive Due Process
Enumerated rights are specified in the Constitution or
Amendments (e.g., “the freedom of speech”).
Unenumerated rights are substantive component of
liberty protected by
• 14A DP Clause against states and localities.
• 5A DP Clause against federal government.
An enumerated or unenumerated right is fundamental
if it is
• Deeply rooted in this Nation’s history and tradition,
• Implicit in the concept of ordered liberty, or
• Identified as fundamental by reasoned judgment
and new insight.
Most rights in Bill of Rights have been deemed fundamental.
SDP - Enumerated Rights
Enumerated rights are specified in the Constitution or
Amendments (e.g., “the freedom of speech”).
SDP - Unenumerated Rights
Unenumerated rights are substantive component of
liberty protected by
• 14A DP Clause against states and localities.
• 5A DP Clause against federal government.
