Bar Prep - Con Law

Front 1

Justiciable Case or Controversy

Back 1

Ripeness
Abstention
Mootness
Political Question
Standing
Eleventh Amendment

Front 2

Standing

Back 2

Standing is the issue of whehter P is the proper party to bring a matter to the court for adjudication.
4 Requirements:
1. Injury - P must show that he has been injured or imminiently will be injured
a) P only may assert injuries that they personally have suffered
b) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm
2) Causation and Redressability - P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the injury
3) No third party standing - P cannot assert claims of others, or third parties, who are not before the court
Exception: Third party standing is allowed if there is a close relationship between the P and the injured third party
Exception: Third party standing is allowed if the injurred third party is unlikely to be able to assert his or her own rights
Exception: any organization may sue for its members, if
a) the members would have standing to sue;
b) the interest are germane to the organization's purpose,
c) neither the lclaim nor relief requires participation of individual members
4) No generalized grievances. Th p must not be suing solely as a citizen or as a taxpayer interest in having the govt follow the law.
Exception: Taxpayers have standing to challenge government expenditures as pursuant to federal statutes as vioation the Establishment clause.

Front 3

Ripeness

Back 3

Ripenes is the question of whether a federal court may grant pre enforcement review of a statute or regulation.
a. The hardship that will be suffered without preenforcement review (greater hardship, more likely to review)
b) The fitness of the issues and the record for judicial review (does the ct have all it needs to decie the issue)

Front 4

Mootness

Back 4

If events after the filing of a lawsuit end the p's injury, the case must be dismissed as moot.
Exceptions:
1) Wrong capable of repetition but evading review
2) voluntary cessation (D halt practice, but can start again at any time, case not dismissed as moot)
3) Class Action Suits - not dismisssed as long as one member has ongoing injury

Front 5

Political Question Doctrine

Back 5

The political questions doctrine refers to constitutional violations that federal cts will not adjudicate
4 Types of non justicible pqs:
1) the Republic form of govt clause
2) Challenges to the Presidents conduct of foreign policy
3) Challenges to the impeachment and removal process
4) Challenges to partisan gerrymandering

Front 6

Supreme Court Review

Back 6

Virtuall all cases come to the Supreme Court by writ of certiori
a) All cases from state courts come to Supreme Ct by writ of certiori
b) All cases from US courts of appeals come to the Supreme court by writ of ceriori
c) Appeals exist for decision of three judge federal distict courts
d) The supreme ct has original and exclusive jurisdiction for suits b/w state governments
2) Generally the Supreme court may hear cases only after there has been a final judment of the highest state court of a US ct of Appeals, or a three judge federal district court
3) For the SUpreme Ct to review a state court decision, there must be an independent and adequate state law ground of decision. If a state court decision rests on two grounds, on state law and one federal law, if the Supreme Court's reversal of the fed law round will not change the result in the case, the Sup Ct cannot hear it.

Front 7

Lower Federal Court Review

Eleventh Amendment (Sovereign Immunity)

Back 7

1. Federal Cts (and state courts) may NOT hear suits against state governments
1) Prinicple of Soverign Immunity
i) The Eleventh Amendment bars suits against states in Fed Ct
ii) Sovereign immunity bars suits against states in state courst or federal agencies
iii) Exceptions: States may be sued under the followin circumstances
1) Waiver is permitted (must be explicit)
2) State must be sued puruant to federal laws adopted under section 5 of the 14th Amend. Congress cannot authorize suits against states under other consituttional provisions
3) The fed govt may sue state govts
3) bankruptcy proceedings

Front 8

Lower Federal Court Review
Suits aginst State officers are allowed

Back 8

- state officers may be sued for injunctive relief;
-state officers may be sued for money damages to be paid out of their own pockets
-state officers may NOT be sued if it is the state tresury that will be paying retroacive damages

Front 9

Lower Federal Court Review

Abstention

Back 9

Federal Cts may not enjoying pending state court proceedings

Front 10

The Federal Legislative Power

A) Congress' authority to act
1. [implied authority to act]

Back 10

1. THere must be express or implied Congressional power
- gneral fed "police power" - Military, indian Reservation, land/territory, District of Columbia

Front 11

The Federal Legislative Power

A) Congress' authority to act
2. Necessary and Proper clause

Back 11

Necessary and Proper to carry any power granted

Must be attached to another article recognized under Art 3 Section 8

Front 12

The Federal Legislative Power

A) Congress' authority to act
2. Taxing/spending power
3. Commerce Power

Back 12

a. Congress may tax and spend for general welfare (raise revenue, spend)
b. The Commerce Power
i) Congress may regulate the channels of interstate commerce (highways, waterway, internet)
ii) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce (instrument: facilitate commerce - trugct, planes, telephones; person/things- things that cross state lines)
iii) Congress may regulate economic activites that have a substantial effect on interstate commerce (In the area of non ecnonomic activity, a substantial effect cannot be based on cumulative impact)

Front 13

The Federal Legislative Power

A) Congress' authority to act
10th Amendment

Back 13

The tenth amendment as a limit on Congressional powers.
The tenth amendment states that all powers not granted to the US, nor prohibited to the states, are reserved to the states or the people.
a) Congress cannot compel state regulatory or legistlative action. Note: congress can induce state govt action by putting strings on grants, so long as the conditionas are expressly stated and related to the purpose of spending reform.
b. Congress may prohibit harmful commercial activity by state govts

Front 14

The Federal Legislative Power

A) Congress' authority to act

Power under section 5 of 14th Amend.

Back 14

Congress may not create new rights or expand the scope of rights. Congress may act only to preent or remedy violations of rights recognized by the cts and such laws must be proportionate and congruement to remedy constitutional violaions
"Narrowly tailored Laws"

Front 15

The Federal Legislative Power

A) Delegation of powers

Back 15

1. No limit exists on Congress ability to delegate legislative power.
2. Legislative vetors and line item vetos are unconstitutional.
For Congress to act, there always must be
1) Bicameralism (passage by both the House and the senate) and
2) Presentment (given the gill to the President and sign or veto). The president must sign or veto the bill in its entirety.
3) Congress may not delegate executive power to itself or its officers

Front 16

THe Federal Executive Power

A. Foreign Policy

Treaties

Back 16

1. Treaties - Treaties are agreements b/w the US and foreign country that are negotiated by the Prez and are effective when ratified by the Senate
a) Treaties Prevail over conflicting state laws
b) If a treaty conflicts with a federal statute, the one adopted last in time controls
c) If treaty conflicts with US Constitution, it is invlid
** Senate must ratify treaty)

Front 17

THe Federal Executive Power

A. Foreign Policy

Executive Agreements

Back 17

An executive agreement is an agreement b/w the US and a foreign country that is effective when signed by the Pres and head of foreign nation. (no senate approval reqd)
b. Executive agreements can be used for any purpose
c. Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or Constitution

Front 18

THe Federal Executive Power

A. Foreign Policy

Implied preemption

Back 18

If statute silen, can find
1) If federal and state laws are mutually exclusive, fed law preempts state law [cant comply with both, fed preempt]
2) If state law impedes the achievement of a federal objective, federal law preempts state law
3) If congress evidences a clear intent to preempt state law, federal law preempts state law

Front 19

Intergovt Immunities

Back 19

State may not tax or regulate fed govt activity

Fed govt never has to comply with state POLLUTION control

Front 20

State interfernce w/ Fed Govt

Dormant Commerce Clause

Back 20

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