Bar - Con Law 1

Front 1

Is a case justiciable?

Back 1

Must be a viable case or controvery including:

Standing
Eleventh Amendment
Abstention/Political Question
Ripeness/Mootness

Front 2

Standing Requirements

Back 2

Injury, Causation & Redressability.
P must show direct & personal injruy. There must be a connection between the injury and the conduct complained of and a decision in the Ps favor must be capable of eliminating her grievance.

Front 3

Congressional Conferral of Standing

Back 3

Congress can't eliminate the case or controversy requirement. Can't extend the scope of federal judicial powers

Front 4

Standing under a government statute

Back 4

A P can enforce a federal statute if she is within the zone of interests Congress meant to protect.

Front 5

Standing to Assert the rights of others

Back 5

Not generally allowed. But if a person has a claim in her own right they may assert the rights of another party when either 1) it is difficult for the third party to assert their own rights or 2) a special realthioship exists between the claimant and the third party.

Front 6

Standing of Organizations

Back 6

1) injury in fact to members that gives them the right to sue on their own behalf 2) injury is related to organizations purpose 3) individual participation in lawsuit is not required.

Front 7

Citizenship & Taxpayer Standing

Back 7

No claims as citizens & no taxpayer standing with the exception of attacking taxing and spending on Establishment Clause grounds.

Front 8

Abstention Doctrine

Back 8

A federal court may abstain from 1) resolving a constituional question when it turns on unsettled question of state law or when 2) state criminal proceedings are pending (unless there is harassment or bad faith).

Front 9

Political Question

Back 9

Issues that are constituionally committed to another branch of government.

Hallmark Examples:
Republican Form of Government
President's foreign policy
Impeachment/removal
Partisan Gerrymander
Quals of elected officials

The court can act on questions such as legislative apporitonment & production of presidential papers.

Front 10

11th Amendment

Back 10

Prohibits federal courts from hearing a private party or foreign government's claim against a state government. Also SOVEREIGN IMMUNITY bars an action by a state government in state court, unless the state consents.

Exceptions:
State can waive
Congress can pass laws that allow suit under 14A
Fed Gov can sue State Gov
Bankruptcy proceedings

Can instead sue state officers.

Front 11

Actions against state officers

Back 11

1) can seek to enjoin an officer from conduct that violates Const/laws or 2) sue for damages against an officer personally.

Front 12

Ripeness/Mootness

Back 12

Ripeness - there must be some harm or immediate threat of harm. (potential statute does not qualify)

Mootness - won't consider a resovled matter unles 1) capable of repetition, but evading review 2) volutary stopping but free to resume 3) class actions when the representative's issue is moot but other's arent.

Front 13

Supreme Court Review

Back 13

1) Cert - discretion - rule of 4
2) Mandatory review for decisions of 3 judge panel in federal district court - case skips court of appeals
3) exclusive JX for suits between states & ambassadors (concurrent w/ other feds)

Front 14

What can congress regulate under the commerce power?

Back 14

1) Channels of interstate commerce
2) Instrumentalities of interstate commerce (persons and things)
3) Activities that have a substantial effect on interstate commerce. A court will uphold a regualtion on an entirely intrastate activity if it is an economic or commercial activity and the court can concieve or a rational basis under which Congresss could find the activity in aggregate affects interstate commerce. But, if it is noncommercial and non economic, Congress must show a substantial economic effect.

Front 15

Congressional Authority to Act under the police power

Back 15

Only MILD police powers - Military, Indians, Lands and DC.

Front 16

Taxing power

Back 16

The tax must either 1) bear a reasonable relationship to revenue production or 2) Congress should have the power to regulate the activity being taxed.

Front 17

Spending power

Back 17

for the general welfare - congress can dispose of property.

Front 18

Congress - War Power limitations

Back 18

1) Congress cannot deny habeas corpus review to aliens detained as enemy combatants without a meaningful substitute for review. 2) American civilians may be tried by military courts under martial law only if actual war forces the courts to shut down.

Front 19

Congress - power over citizenship

Back 19

Can establish uniform rules. Can deny aliens entry because of their political beliefs. However resident aliens are entitled to notice and a hearing before they can be deported. Congress cannot deprive someone of citizenship without their consent.

Front 20

Delegation of Legislative Power

Back 20

Must set intelligible standards and it must not be a power that is confied to Congress under the Constitution.

Front 21

Speech and Debate Clause

Back 21

Conduct in the course of the federal legislative process is immune from prosecution. Immunity doesn't cover bribes, speeches outside of Congress, republication in a press release.

Front 22

Presidential appointment powers

Back 22

Preident appoints with advice and consent of teh enate. Congress can vest appointment of inferiror officers in the president, the courts or the heads of departments but congress cannot give itself this power. Removal is entirely up to the president, unless statutory limitations for good cause in certain job titles that require it. Congress can only remove through impeachment.

Front 23

Pardon power

Back 23

all FEDERAL offenses. Cannot be limited by Congress. Doesn't include civil contempt, even where jail time exists.

Front 24

President's power as Chief Executive (Steel Seizure Framework)

Back 24

1) Authority is at it's maximum when Pres acts with express or implied consent from Congress 2) when Congress is silent Pres power will be upheld unless it interferes with sep of powers 3) President acts against the will of congress his action is likely invalid.

Front 25

Executive Privilege/Immunity

Back 25

Priviledge - to keep confidential communications secret. In criminal proceedings, prosecution can demonstrate need.

Immunity - absolute immunity for civil damages based on action Pres takes in his official responsibility. Extends to presidential aides w/ discretionary authority.

Front 26

Preemption

Back 26

1) If a state or local law prevents acheivement of a federal objective it is invalid.
2) If a federal statute expressly or impliedly occupys the entire field this precludes any reguatlion even if it is non conflicting.

Courts presume police powers are not superseeded unless that is the clear purpose of Congress

Front 27

Interstate Compact Clause

Back 27

An agreement between states that increases their powers at the expense of federal powers must have Congressional approval.

Front 28

Full Faith and Credit requirements

Back 28

1) JX 2) on the merits 3) final judgment

Front 29

Intersovereign Litigation

Back 29

1) U.S. can sue a state without it's consent
2) U.S. government must give consent to be sued by a state
3) A suit against a federal officer is brought against the U.S. if the judgment would be satisifed out of the treasury or if it interfers with public adminsitraiton. However, specific relief against an officer as an individual is allowed if the officer acted ultra vires.
4) State may sue another state in the S.C. without consent.

Front 30

Can the Federal Government tax or regulate state and/or local governmental activities?

Back 30

Only if both the public sector and the private sector are regulated (ex: minimum wage). Regulating or taxing only the state would be limited by the 10th amendment.

Exception - Congress can restrict state activities that violate civil rights.
Exception - Congress can regulate states trhough the spending power.

Front 31

Commandeering State Officials

Back 31

Congress may not require state executive officials to enforce federal laws.

Front 32

Can the state tax/regulate the federal government?

Back 32

No, not without the consent of congress. However, nondiscriminatory, indirect taxes are permissible if they don't unreasonably burden the federal government (income tax on federal employees).

Front 33

Article IV - Priviledges and Immunities

Back 33

Only protects people not corps/aliens. Prohibits discrimination by a state against a nonresident. Only fundamental rights and civil liberties are protected. Subject to "Substantial justification" for the different treatment. State must show that nonresidents cause/contribute to the problem and that there are no less restrictive means of solving the problem.

Consider Dormant Commerce Clause when using P&I

Front 34

Priviledges and Immnities - 14th Amendment

Back 34

States cannot deny citizens the P & I of NATIONAL citizenship. Essentially right to travel, vote for federal officers, petition Congress for redress

Front 35

Dormant Commerce Clause

Back 35

Facially Discriminatory & unduely burdensome it is invalid unless 1) Market participant 2) furthers an important, noneconomic state interst & no reasonable nondiscrimintaory alternatives or 3) law favors government performing traditional government functions

If non facially discriminatory - does it still place a burden on interstate commerce. If so, it is invalid unless the states interest outweighs the burden.

Actions under the DCC can be brought by an alien or a corporation.

Front 36

Bill of Rights, those not extended to states

Back 36

3rd/Quartering
5th/grand jury
7th/jury in civil
8th/excessive fines

Front 37

13th amendment

Back 37

Prohibits slavery & involuntary servitude. Under enabling Clause, Congress can prohibit racially discriminatory action by ANYONE (the government or a private citizen)

Front 38

14th Amendment - Due Process, Esp. Section 5

Back 38

Only involves state action. Section 5 gives Congress power to adopt legislation to enforce the 14th. They may not expand rights or create new ones, but they may adopt legislation that is "congruent and proportional" to remdying a violation of rights.

Front 39

Commerce Clause & racial discrimination

Back 39

Congress can use the substantial effect on interstate commerce prong to limit private racial discrimination.

Front 40

Rights of National Citizenship

Back 40

Right to assemble, travel and petition Congress

Front 41

When can private action constitute state action?

Back 41

When either individuals 1) perform exclusive public functions or 2) have significant state involvment (when a state affirmatively facilitiates discrimination/enforcing a discriminatory covenant)

Front 42

Contract Clause

Back 42

Prohibits sates from enacting a law that retroactively impairs contract rights. If a federal issue, look at due process (5th amendment). Contract Clause doesn't apply to Feds.

1) state legistlation that substantially impairs an existing contract is invalud unless it 1) serves and important and legitimate public interest and 2) it is a reasonable and narrowly tailored means. STRICTER SCRUTINY when the state is a party.

Front 43

Procedural Due Process (General Rule)

Back 43

A fair process (notice & hearing) is required for a gov't to take a person's life, liberty or property. Must e intentional or "shock the conscience." Balancing Test...(on another card)

Front 44

Deprivation of LIberty

Back 44

loss of freedom of action or statutory freedom

1) Except in an emergency, before an adult can be instituionalized, there must be notice and a hearing

2) When a child is institutionalized by a parent, only a screening by a neutral fact finder

3) Harm to reputation is not loss of liberty

Front 45

Deprivation of Property

Back 45

An entitlement, where there is a reasonable expectation of continued benefit (welfare benefits)

Front 46

Balancing Test for Procedural Due Process

Back 46

1) Importance of the interest to the individual 2) government's interests in efficiency/money 3) The ability of additonal procedures to increase the accuracy of fact finding.

Front 47

Government Fees & Indigent Plaintiffs

Back 47

When government fees would deny a fundamental right, the fee must be waived. (marriage, divorce, filing fee for election)

Front 48

The Taking Clause, in general

Back 48

5th amendment - The government may take private property for public use if it provides just compensation.

Front 49

Takings attack

Back 49

1) Is there a taking? 2) Is it for public use? 3) Has just compensation been paid?

Front 50

When a taking exists?

Back 50

1) posessory taking or 2) reulatory taking that leave no reasonalbe econoically viable use of the property

Front 51

Defining public use

Back 51

Very broadly defined - so long as the government acts out of a reasonable belief that the taking will benefit the public

Front 52

Measuring just compensation

Back 52

Measured in terms of loss to the owner. (Fair market value)

Front 53

Takings, Special Rules

Back 53

1) Government conditions on devleopment must be justified by a benefit that is proportionate to the burden or it is a taking.
2) a property owner may bring a takings challenge to regs that existed before they owned teh property
3) temporary deprivation is not a taking if the action is reasonable