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43 Cards in this Set
- Front
- Back
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What must be met for any federal court to hear a case??
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1. Standing
2. Ripeness 3. Mootness 4. Political Question ------------ 5. Abstention 6. 11th Amendment (Sovereign Immunity) |
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What are the elements for standing?
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1. INjury (personal or likelihood of future harn for inj relief/decl relief)
2. Causation and redressability -Causation: P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the injury. - Redressability: Decision in the litigant’s favor must be capable of eliminating his or her grievance(s) 3. No third party standing - Cannot assert claims of others, of 3Ps, who are not before the court. - EXCEPT: (i) There is a sufficiently close relationship between P and the injured 3rd party (ii) Injured 3rd party is unlikely to (without difficulty) be able to assert his or her own rights iii) An organization may sue for its members 4. No generalized grievances - P must NOT be suing solely as a citizen or taxpayer interested in having the government follow the law – Injury is to generalized EXCEPT: (i)Taxpayers have standing to challenge any government expenditures – made pursuant to federal statutes – on the grounds that the spending is a violation of Establishment Clause Expenditures to aid parochial schools |
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Ripeness?
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Can federal court grant pre-enforcement review of a statute/regulation????
-Court may make such “pre-enforcement” review upon balancing: (a) Hardship that will be suffered without pre-enforcement review (b) The fitness of the issues and the record for judicial review E.g. is there anything to be gained from waiting? - Note: Ripeness bars consideration of claims before they develop so on exam, look for a request for a declaratory judgment then bring up ripeness issue. |
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Mootness??
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If events after the filing of the lawsuit ends P’s injury, then the case is moot
Exceptions: - A case will not be dismissed as moot despite the fact the injury for which P is seeking redress no longer exists IF: (i) The wrong is capable of repetition but evading review Think Roe v. Wade – Every abortion case would be dismissed as moot without this “repetition” exception (ii) Voluntary cessation If D voluntary stops the injury causing action but could later reinstate it (discrimination suit where employer stops during litigation but could later reinstate) (iii) Class action lawsuits Only one member of the suit must have ongoing injury for all to be justiciable |
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What are the four political question issues/non-justiciable the fed courts will not adjudicate???
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(i) Actions under “republican form of government clause”
• Cases regarding laws enacted under/pursuant to this clause are non-justiciable political questions (ii) Challenges to President’s conduct of foreign policy (iii) Challenges to the impeachment and removal process (iv) Challenges to partisan gerrymandering •Where election districts are drawn to maximize the political power of the party drawing them Others mentioned by not often used on the bar include: (i) Challenges to congressional procedures for ratifying constitutional amendments (ii) Whether a person elected to Congress meets the age, residency, or vote requirements Non-political questions include: (i) Legislative apportionment (ii) Arbitrary exclusion of congressional delegate (iii) Production of presidential papers/communications |
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What are the requirements for Sup Ct review?
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1. Virtually all cases come to the SC by writ of certiorari.
- All cases from state supreme courts - All cases from US Court of Appeals (Discretionary review) 2. Some cases, court must take an appeal (mandatory review) - Appeals exist for decisions of three-judge federal district courts re: injunctive relief If appellate review is requested in these instances then the Supreme Court is obligated to hear the case – Court’s of Appeal or bypassed entirely 3. In very rare instances the Court has original jurisdiction over a matter (i) Supreme Court has original and exclusive jurisdiction for suits between state govts. -In these instances the case will actually be filed with the Supreme Court It also has original but not exclusive jurisdiction in all cases affecting ambassadors, public ministers and consuls 4. Generally, the Court may hear cases ONLY after there has been a final judgment OF (i) The highest state court; (ii) A U.S. Court of Appeals; OR (iii) A three-judge federal district court 5. For Supreme Court review of a state court decision, there must NOT be an independent and adequate state law ground for the decision – otherwise hearing the appeal is irrelevant (i) If a state court decision rests on two grounds – One state law and one federal -Then the Supreme Court’s reversal of the federal law ground would not change the result in the case – Thus, Supreme Court cannot here the case However, if the State decision is silent and fails to clearly indicate that its decision rests on state law grounds the Court may hear it |
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When may federal courts (and state courts) hear suits against state governments?
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Generally never.
1. Federal courts (and state courts) may NOT hear suits against state governments which are brought by private parties or other foreign governments absent express consent to be sued - Sovereign immunity 2. EXCEPTIONS (four) (i) Waiver/consent to be sued (ii) States may be sued persuant to fed laws adopted under Sect 5 of the 14th Amend (iii) FEd govt may sue state govts (iv) Bankruptcy 3. States against state OFFICERS are allowed. |
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When are suits against state officers allowed?
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-Sued for injunctive relief for violations of Federal law or Constitution
Even if it requires prospective payment from the state - They are sued for money damages to be paid out of their own pockets - BUT NOT if it is the state treasury that will be paying retroactive damages Note: There is always at least one MBE question on these issues and often there are essays on these rules as well |
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Abstention
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(1) Federal courts may NOT enjoin pending state court criminal proceedings except in cases of proven harassment or prosecutions taken in bad faith
- The same goes for some pending administrative or civil proceedings which involve an important state interest as well Hypo: CA law bars use of BarBri books. You are prosecuted in state court and thereafter seek a federal declaratory judgment and an injunction staying the state court proceeding – Granted? NO – Fed. courts cannot enjoin the pending proceeding |
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What gives Congress authority to act???
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1. Express or Implied Congressional Power
- Except MILD laws 2. Necessary and proper clause *Congress can exercise those powers which are enumerated in the Q plus all auxiliary powers which are N&P to carry out enumerated powers* --------- 3. Tax/Spending Power and the Commerce Power (IMPORTANT!!) *Congress may tax and spend in any way deemed for “general welfare”* - Tax must bear a reasonable relationship to revenue production OR Congress must have the power to regulate the activity taxed 4. Commerce Power (Important!!) - Commerce Clause *Congress has exclusive power to regulate IC so long as....* |
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When does Congress have the exclusive power to regulate interstate commerce under fed law???
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1. Regulates the channels of interstate commerce
•Internet, highways, waterways etc. 2. Regulates the instrumentalities of interstate commerce and persons and things in interstate commerce; or • Instrumentalities are those things that further interstate commerce - Trucks, phones, the internet etc. 3. Regulates activities that have a substantial effect on interstate commerce |
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When does the Commerce Clause give power to regulate intrastate commerce???
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1. Economic Activity:
• Congress can regulate if the “cumulative” effects of all those engaging in the conduct rationally has a substantial effect on interstate commerce 2. Non-Economic Activity: • Congress cannot regulate based on “cumulative” effects of all those engaging in the conduct but it must individually effect interstate commerce - US v MOrrison allowing victims of gender based crimes to sue in fed court, unQ. Note: Difference in growing own wheat and weed (substantial IC effect due to cumulative effects) and violence against women act (non-substantial IC effect) |
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What limitations are there on congress' authority to act?
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1. 10th Amendment Limitations
2. Power under Sect 5 of the 14th Amend |
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What limitations does Congress' power have under section 5 of the 14th Amend?
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1. Congress may NOT create new rights or expand the scope of rights
- They may act ONLY to prevent or remedy violations of rights recognized by the courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations |
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What limitations on Congressional powers does the 10th Amend have?
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10th Amendment states that all powers not granted to U.S., nor prohibited to the states, are reserved to the states or the people – THUS
1. Congress cannot compel state regulatory or legislative action (IMP) - COMMANDEERING Note: Congress can induce state action by putting strings on grants, so long as the conditions are expressly stated and they relate to the purpose of the spending program at issue 2. Congress may prohibit harmful commercial activity by state governments Reno: Federal law prohibited release of SS #’s and home addresses. Court held Congress wasn’t imposing a duty on the states but was prohibiting harmful commercial activity (e.g. the selling of the addresses and SS #’s etc.) |
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What foreign policy power does prez have?
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1. Treaties (Agreements between US and a foreign country that are negotiated by the President and are effective when ratified by the Senate)
Treaties prevail over conflicting state laws - If a treaty conflicts with a federal statute, the one adopted last in time (most recently) controls/takes precedence (3x in last 5 yrs on MBE) - If a treaty conflicts with the US Constitution, it is invalid 2. Executive Agreement (Agreement between US and a foreign country that is effective when signed by the President and the head of the foreign nation ) - Executive agreements can be used for any purpose Executive agreements prevail over conflicting state laws but NEVER over conflicting federal laws or the Constitution |
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Delegation of Powers
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1. No limit exists on Congress’ ability to delegate its legislative power
Exam Tip: Ignore answer discussing unconstitutionality of an act for its having exceeded the legislatures power to delegation power 2. Legislative vetos and line-item vetos are ALWAYS unconstitutional (i) Legislative Veto: Where Congress attempts to overturn an executive action without bicameralism or presentment (always unQ) For Congress to do this, there always must be bicameralism (passage by both House and Senate) and presentment to President (ii) Line-item Veto: Where president attempts to veto part of bill while signing the rest into law , President must sign or veto the bill in its entirety 3. Congress may not delegate executive power to itself or its officers |
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What power does prez have over domestic affairs???
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1. Appointment Power
2. Removal Power 3. Impeachment and Removal 4. Absolute Immunity 5. Executive Privilege 6. Executive Pardons |
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What appointment power does the prez have?
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1. President appoints ambassadors, federal judges and officers of the US whose appointments are not otherwise provided for
2. Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts as it sees fit - Inferior officers are those who can be fired by another officer - Secretary of state is officer, those under them are inferior 3. Congress may not give itself or its officers the appointment power (tested TWICE in last 5 years) |
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What removal power does prez have?
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1. Unless removal is limited by statute, the President may fire any executive branch officer subject however to certain Congressional limitations
- Congress can limit removal if it’s deemed the office in question must be one where independence from the President is desirable - Even then Congress cannot prohibit removal, it can only limit removal to situations where good cause is shown 2. Congress can remove executive officers only through impeachment process |
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What does prez have absolute immunity for?
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1. President has absolute immunity to civil suits for money damages resulting from actions conducted while he/she is in office – HOWEVER
- There is NO immunity for actions that occurred prior to taking office |
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What executive privilege does prez have?
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1. President has executive privilege for presidential papers and conversations, but such privilege must yield to other important governmental interests in criminal cases
- E.g. the Watergate scandal…Documents and phone logs needed to be disclosed for evidentiary purposes despite this “executive privilege” |
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What can prez give exec pardon for?
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1. President has the power to pardon those accused or convicted of federal crimes
Exception: One can’t be pardoned for crimes underlying their impeachment Exam Tips: President may pardon only as to federal criminal liability – No state crimes, no civil cases, no impeachment offenses |
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Federalism
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1. Preemption
2. DCC and PIC of Article IV 3. State taxation of interstate commerce 4. Full Faith and Credit |
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Preemption
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Article VI’s Supremacy Clause: The Federal Constitution and any laws and/or treatise made pursuant thereto, are the supreme laws of the land and thus trump conflicting state law
1. Express Preemption: If federal statute explicitly says federal laws are exclusive in this (X) field 2. Implied Preemption 3. Intergovernmental Tax and Regulation Immunities: States may NOT tax or regulate the federal government’s activities – Inter-governmental immunity exists |
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In what instances is there implied preemption?
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(1) Federal and state laws are mutually exclusive – (a conflict exists):
- If you cannot comply with both federal and state law at same time States may set environmental standards stricter than federal law UNLESS federal law so prohibits it Note: Not limited to environmental but that is what MBE has used in recent years (2) State law impedes achievement of federal objective: - In other words, the goal the federal government is trying to achieve cannot be reached so long as the existing state law is on the books (3) Congress evidences clear intent to preempt state law: - Immigration law and bankruptcy law – These are key examples This may occur EVEN IF the state law is non-conflicting Look for the comprehensiveness of the federal scheme and the creation of an agency to administer the law (e.g. the SEC etc.) |
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May states tax or regulate the federal government’s activities???
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NO -- States may NOT tax or regulate the federal government’s activities – Inter-governmental immunity exists.
1. Unconstitutional to pay a state tax out of the federal treasury but, for example, a state may impose income tax upon federal employees 2. States cannot regulate the government if they would be placing a significant or substantial burden upon federal activity E.g. The federal govt. never need comply with state pollution laws Note: Congress may so tax and regulate state government’s activities subject to some very limited restrictions imposed by the 10th Amendment – Do not worry about them |
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Dormant Commerce Clause?
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NOT real clause, but......Principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce – Inferred from the commerce clause
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Privileges and Immunities Clause of 14th Amend
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This is ALWAYS the wrong answer UNLESS dealing with right to travel
- This clause says “no state may deprive a citizen of the privileges and immunities of US citizenship” |
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Privileges and Imm Clause of Article IV?
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Anti-discrimination provision, applies ONLY when state discriminating against out of staters.
No state may deny citizens of other states of the privileges and immunities it accords its own citizens – This protects only those “fundamental rights” |
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Privileges and Imm of 14th Amend
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Unless deals with right to travel, it is ALWAYS a wrong answer!!!!
This clause says “no state may deprive a citizen of the privileges and immunities of US citizenship” |
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If law discriminates against out of staters it violates the DCC, UNLESS:
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necesarry to achieve an important government purpose
1. Must show there is no less discriminatory alternative that would allow it to achieve its objectives - Helping in-state vs. out-of-state is NEVER an important purpose – Only “important purpose” on MBE is preservation of natural resources HYPO: Maine v Taylor- State can prohibit importation of live bait fish because parasites could have detrimental effects on its own fish population BUT they could not prohibit export of live bait fish when no major state interest was involved 2. Congressional Approval: Once Congress has acted, its commerce power is no longer dormant and DCC doesn’t apply 3. Market Participant Exception: State or local governments may favor its own citizens in receiving benefits from government programs or dealing with government businesses |
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If the law discriminates with regard to one’s ability to earn a livelihood, it violates privileges and immunities clause of Article IV unless:
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Necessary to achieve an important government purpose.
REQS: (a) Law must discriminate against out-of-staters (b) The discrimination must be with regard to civil liberties or important economic activities - Usually ability to earn a livelihood on the bar. - This is what “important economic activities” means to the California Bar Examiners – All you must worry about (c) Corporation and aliens can’t use P&I clause of Art. IV - Exam Tip: If you have a question where state or local law discriminates against out-of-staters and the challenger is corporation and/or alien THEN ONLY use the DCC analysis of the law (d) Discrimination must be necessary to achieve an important government purpose |
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If an out of stater and US citizen and there is a state law discriminating against him, what claims to bring?
A corporation out of stater? An alien out of stater? |
DCC and PIC unless congressional approval or market participant apply.
DCC DCC |
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What are the rules of state taxation of interstate commerce???
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RARELY tested anywhere on BAR.
1. States may not use their tax systems to help in-state businesses - E.g. no taxing out-of-state business higher than in-state business (this violates DCC) 2. A state may only tax activities if there is a substantial nexus to the state 3. State taxation of interstate business must be fairly apportioned to activity occurring there - Corollary to point (ii) above – you can use any method to ensure you are only taxing for that portion of business actually being conducted within your state 4. Note: Since this is almost never tested a lot of this information has been omitted - If anything just discuss these rules and discuss them and that should suffice |
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Courts in one state must give full faith and credit to judgments of courts in another state IF what all elements are met???
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1. The court that rendered the judgment had jurisdiction over the parties/subject matter
2. The judgment was on the merits 3. The judgment is final |
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Is there a government action?
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1. Q applies only to government action. Private conduct need not comply with the Q.
2. Congress, by STATUTE may apply constitutional norms to private conduct. (a) 13th Amendment can be used to prohibit private race discrimination. (b) Comm Power can be used to apply Q'al norms to private conduct. (c) Congress cannot use sect 5 of the 14th Amend to regulate private behavior. EXCEPTIONS - when private conduct MUST apply with the Constitution: 1. Public function exception - Q applies if a private entity is performig a task traditionally exclusively done by govt. 2. Entanglement Exception - Q applies if the govt affirmatively authorizes, encourages, or facilitates unQ actiovity. (tons of examples) |
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What are examples of when entanglement exception applies????
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(1) There is state action when a court enforces a racially restrictive covenant – Courts cannot do this
- Enforcement facilitates the discrimination (2) There is state action when government leases premises to a restaurant that racially discriminates (3) There is state action when a state provides books to schools that racially discriminate Note: These three find state action in racial discrimination cases – This is a safe but not full-proof method of approaching these issues Discrepancies will be shown below (4) There is state action when a private entity regulates interscholastic sports within a state (5) There is no state action when the NCAA orders the suspension of basketball coach at a state university Note: Distinguished from (5) in that one is nationwide and the other is only statewide (6) There is no state action when a private school that is over 99% funded by the government fires a teacher because of his or her speech Note: Government subsidy is insufficient for “state action” making the constitution apply (7) There is no state action when a private club with a liquor license from the state racially discriminates |
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What are the exceptions to the BoR being applied to state and local governments through its incorpoation into the DPC of the 14th Amend?
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1. 3rd Amend Right to not have a solider quartered in a person's home
2. 5th Amend Right to grand jury indicment in criminal cases 3. 7th Amend rig to jury trial in civil cases 4. 8th Amend right against excessive fines. |
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Rational Basis Test:
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A law is upheld if it is rationally related to a legitimate government purpose
------ - Only legitimacy is required - Any conceivable legitimate purpose is enough regardless of what the real purpose for the enactment of the law may be - This is very deferential to the government • Burden of Proof is born by Challenger |
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Intermediate Scrutiny:
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A law is upheld if it is substantially related to an important governmental purpose
------ - Now we need more than mere legitimacy - Doesn't have to be the BEST way (least restrictive alternative), narrowly tailored or substantially related - BoP by governemnt |
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Strict Scrutiny
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A law is upheld if it is necessary to achieve a compelling state interest
--------------- - Now we need a showing of necessity for the law’s enactment - The court will look at the “actual” reason the law is enacted - Moreover, the Government must show that there is no less restrictive means of achieving its goal - narrowly tailored PLUS necessary means - This is very deferential to the challenger - Burden of Proof born by Government |
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A tax is valid under the CC clause if:
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1. tax does not discriminate against interstate commerce
2. There is a substantial nexus between the activity taxed and the taxing state 3. The tax is fairly apportioned 4. Tax fairly relates to services or benefits provided by the state. |
