Con Law Bar Exam

Front 1

Judicial Power--Only cases and controversies--No advisory opinions

Back 1

Advisory if someone has the power to override the decision

Front 2

Judicial Power--Only cases and controversies--Ripeness

Back 2

P must allege an actual harm or immediate threat of harm

Not ripe if significant events necessary to sharpen the issues haven’t occurred yet

Ex// (Congress considering enacting a law, no enforcement of a law)

Front 3

Judicial Power--Only cases and controversies--Standing

Back 3

1. P, has to suffer an actual concrete injury in-fact (Economic, physical, environmental loss of rts, COA under a statute; NOT ideological harm)

2. Causation of harm by gov’t

3. Redressibility

Front 4

Judicial Power--Only cases and controversies--Mootness

Back 4

A case will be dismissed as moot unless there is an actual live controversy btwn the parties at ALL stages of litigation (including on appeal)

Key Qs: Can the judge change the position of the parties or has the problem resolved itself?

Exceptions
a.Injury capable of repetition to that P, yet b/c of it’s nature will evade review (look for an internal time limit)
b.Case brought as a class action and the issue is still alive for at least one member of the class
c.Superficially, the case is moot, but there are collateral consequences or some continuing issues between parties (i.e. something you can sue about)
d.D stopped the harm, but can return to their old ways at any time (polluting plant closed, but still has cert of operation)

Front 5

Standing--Redressiblity-- Special Issues

Back 5

Organizations and Associations can sue for injuries to it’s members if:

1.A member or members would have standing AND
2.The member injury is related to the purpose of the org
3.There is no reason (like an award of damages to an individual) that would warrant individual participation in the suit

Front 6

Raising the Rts of Others/ 3rd party standing

Back 6

1.The party has suffered some actual injury AND
2.There is a special relationship btwn the party and 3rd person (usually both being parties to an exchange or transaction) and there is some hindrance to the 3rd party raising his/her own rts

Front 7

Standing as a citz?

Back 7

No standing as a citz, even where P is suing under a statute conferring “citz standing.”

Front 8

Standing as a taxpayer?

Back 8

No, unless you're challenging your own tax liablity.

Exceptions (very narrow)

i.Laws enacted under Congress’ taxing and spending powers (not exec or admin action) AND
ii.Exceeding a specific constitutional limit on taxing and spending (meaning an Establishment clause challenge to a taxing and spending law)

Front 9

Legislators Standing

Back 9

Legislators may challenge acts that cause them personal or concrete injury,

1.Member being denied the rt to vote on a particular leg
2. But no rt to challenge laws which were enacted but they believe that it’s uncons.

Front 10

Supreme Ct Review of State Ct Judgments

Back 10

1. Case must involve a matter of federal law
2. Final judgment
3. Must have gone to the highest ct that could hear it (could be county ct) AND
4. There is no independent and adequate state ground on which the state Ct decision is based

Indepdenent= Did the start cts decision depend on fed law. If mixed, SC can hear

Adequate = No matter how the federal issue is decided, the outcome will be the same under resolution of the state law issue

Front 11

Doctrine of Abstention

Back 11

Ct will decline to hear a case challenging a state law if:

1.It involves a cons challenge to a state law, but the meaning of the sate law is unclear/unsettled OR
2.The matter is already pending before state judicial or administrative tribunals

Front 12

Political Q’s--Not justicable

Back 12

i.Q’s that are cons committed to another branch of gov’t to decide or are beyond the competence or enforcement capabilities of the judicial branch

1.Republican form of gov’t clause challenges
2.True foreign affairs or military command decisions
3.Impeachment procedures
4.Seating of delegates at a national convention
5.Election and qualification of members of Congress (age, citz, and residency)
6.Procedures to amend the cons

Front 13

11th Amendment--Federal

Back 13

A private party (not another gov’t) cannot sue a state (not local gov’t) in federal ct UNLESS

i.State expressly consents OR
ii.Congress clearly says so to enforce remedial powers under 14th amendment rts

Caveat: A person may sue state officers in their individual capacities for damages AND may sue state officers for injunctions against future unconstitional action by state
-If the suit is for $ to be paid out of the state treasury or for an injunctive or declaratory relief where the state is the Named party.

Front 14

11th Amendment--States

Back 14

A P may be able to sue in state Ct. However, states may raise sovereign immunity against the claims in their own ct.

a.Congress has no power to subject non-consenting states to private suits for damages in either federal ct or state courts (federalism) EXCEPT 14th remedial,

Front 15

Legislative Powers (Congress has no police power!!!)

Back 15

-All federal powers, including the leg power of Congress must relate in some way to an express grant of power in the Cons.

-Under 10th, all powers not granted to fed gov’t are reserved to the states or the people

Front 16

Express or enumerated powers of Congress include powers over:

Back 16

i Admiralty
ii.Citz
iii.Bankruptcy
iv.Federal property
v.Patents and copyright
vi.Post offices
vii.Coining money
viii.The territories and the District of Columbia
ix.War; and
x.Raising and supporting armies

Most testable
a.Interstate commerce, tax and spend for the general welfare, and to enforce the 13th, 14th, and 15th amendments

Front 17

Commerce Power (Broad power)

Back 17

Setting rules, standards and rates, and promoting, prohibiting and punishing behavior

Congress may regulate obvious interstate commercial activity (i.e. goods moving across state lines) and the use of interstate instrumentalities (i.e. mail or phone system)

2.Congress may regulate purely local/intrastate activity which by themselves or repeated by others substantially affect interstate commerce (“cumulative effects doctrine”)

ii.Limits
1.Congress cannot tell states what laws to enact, such as telling states that they must pass a law.
2.Congress cannot “commandeer” state regulatory agencies and force them to enforce federal law
3.Congress cannot criminalize behavior that does not in any way relate to commercial or economic activity

HOWEVER
i.Congress can regulate states directly in their economic or commercial activities
ii.Threaten pre-emption
iii.Bribe the states w/money under spending powers

Front 18

Taxing Power

Back 18

Congress may tax and spend for the general welfare

Congress may use the taxing power to regulate and prohibit behavior. so long as the statue is capable of raising some revenue

EX/Prohibitive tax on gambling or goods made by child labor

Front 19

Spending Power

Back 19

Chief source of power to “bribe” states to do what gov’t wants them to do.

Cts will enforce a condition against a state which has accepted federal funds if:

a.Enacted for the general welfare (means nothing)
b.It can’t violate individual liberties
c.Condition must be reasonably related to federal interest
d.Must be perfectly clear that $ is conditional on states doing a specific act

Front 20

Enforcement of 13th:

Back 20

1.Outlaws slavery
2.Gives Congress the power to enforce the amendment

-Laws can be applicable to everyone (private and public)

-Not just to eliminate slavery per se, but to end all “badges and incidents” of slavery (Ex/ Racial discrimination in housing)

Front 21

Enforcement of 14th

Back 21

1.EP and DP
2.State action required
3.Congress only has the rt to enforce, or remedy the rts of 14th as they are defined by the cts.

a.Doesn’t have the rt to create new rts
4.Intended to cover any person physically within a states border regardless of the legality of his/her presence (illegal aliens)

Front 22

Enforcement of 15th

Back 22

15th:

1.Protects rt to vote against any federal or state gov’t racial discrim

a.Federal officials can register votes in local elections

Front 23

Delegation of Congressional Power

Back 23

Most things delegable (except, like all powers)

-May delegate to administrative agencies as long as Congress sets forth some intelligible principles or some standards to guide the exercise of the power

Front 24

Legislative Veto

Back 24

Uncons

i.If Congress delegates authority to the executive branch, Congress may not reserve for itself a 1-house, 2-house, or committee veto over the acts taken by the executive branch based on that delegation

1.It must pass new leg passed by both houses + signed by the Prez

Front 25

Congressional Immunities

Back 25

Members can’t be prosecuted, punished (civil or crim) for their official or “legislative acts.”

1.Acts that are integral to the leg process (actions on the floor, voting, and committee work)

Not included: Communications w/constituents, redistribution of materials

Front 26

Executive Power--Domestic Powers

Back 26

i.Power and duty to enforce laws of Congress
ii.May not make law, EXCEPT if there’s an emergency and Congress has not said no to the particular act.
iii.Must carry out Congressional directives
iv.May sign or veto legislation (but may not veto some parts and not others—Line Item veto)
v.Exclusive power to pardon for federal offenses (any crimes you may have committed.
vi.Appoint and remove executive officials

Front 27

Appointing and removing executive officials

Back 27

Congress may never directly appoint or remove executive branch officials.

Congress may appoint persons who work only for Congress and do not take action or make decisions on behalf of U.S. gov’t

Front 28

Congress may limit Prez’s power to appoint in 2 ways

Back 28

i.Principal officers (ambassadors, judges, and cabinet heads)
1.President appoints w/the advice and consent of Senate

ii.Inferior officers (those who answer to another, limited duties like indp counsel)
1.Congress may vest the power in the Pres alone, dept heads, or judiciary

Front 29

Congress and Executive Officials

Back 29

Congress may never directly remove executive branch officials, except through impeachment

a.Congress may limit Prez power to remove (i.e.requiring “cause”)

3. Congress may not give executive powers to person it may hire and fire

Front 30

Impeachment

Back 30

i. Articles of impeachment by the House
ii. Trial by senate (2/3) vote
iii. Removal

Front 31

Presidential Immunities

Back 31

Presumptive privilege not to disclose presidential communications.

Balancing test used: Prez test will yield to a specific need for evidence in a criminal trial.

Prez is absolutely immune from civil suits for damages for any Presidential acts (like wrongful firing of an e’ee)
a. Ex// Nixon case vs Jones

Front 32

Power to Declare War

Back 32

Congress alone has the power to declare (and fund) war

Prez may in addition to conducting military operations once ware is declared, may repel invasions and take emergency action to protect the lives and property of U.S. Citz

Front 33

Prez's Foreign Affairs Powers

Back 33

Prez may act w/o approval of Congress as chief foreign policy spokesperson ( receiving ambassadors, meeting w/ heads of state)