Con Law - Fed/state Power

Front 1

Judicial Power

Back 1

Federal Court can not give advisory opinions, in order for the court to hear a case it must be a case, it must be a case or controversy that meets the 4 justifiability requirements.

1. Standing
2. Ripeness
3. Mootness
4. Political question

Front 2

Standing

Back 2

A federal court will not decide a case unless the person bring the suit has personal standing. Meaning that person has a concrete stake in the out come of the case. The person must show and injury, causation and redressibility.

1. P must show that she has been or will be directly or personally injured. (Declaratory relief - P must show likelihood of future harm)

2. Causation - That the D (the state actor) caused the injury to P.

3. Redressility - Where a favorable decision would be likely to remedy the P's injury.

Front 3

Third Party Standing

Back 3

A P may assert 3rd party rights only where he himself has individual standing and:

1. 3rd party finds it difficult to assert their own rights.

2. There is a close relationship between the plaintiff and the 3rd party (doc/ patient)

Front 4

Organizational Standing

Back 4

An organization has standing where there is an injury in fact to its members. This requires:

1. Must be an injury that would give right for that member to sue on their own

2. The injury and the members must be germane to the organizations purpose.

3. Neither the injury claimed nor the relief granted requires the participation of the member.

Front 5

Generalized Grievances

Back 5

No suing allowed for generalized grievances. P must not be suing soley as a "citizen" or as a taxpayer soley interested in having the government follow the law.

Exception - A taxpayer has standing to challenge government expenditures pursuant to federal statutes as violating Establishment Clause.

Front 6

Ripeness

Back 6

A P is not entitled to review of a statute or regulation before it is enforced (may not obtain declaratory relief) UNLESS the P will suffer some harm or immediate threat of harm.

Balance test: 1. Hardship suffered if no review and 2. fitness of issues and record for review.

Front 7

Mootness

Back 7

If events after filing the suit has been resolved, the case will be dismissed as moot.

Exceptions:

1. A wrong that is capable of repetition but evading review (Roe v Wade)

2. Voluntary Cessation by D, but he is free to resume offensive practice at any time.

3. Class action suits - if anyone in that class is still being harmed.

Front 8

Political Question

Back 8

Political question doctrine states that certain constitutional violations are not adjudicated in federal courts, because they are more appropriately addressed by other branches.

4 types that are always dismissed:

1. Republican form of government clause

2. Challenges of Presidents conduct of foreign policy

3. Challenges to impeachment and removal process

4. Challenges to partisan gerrymandering

Front 9

Supreme Court Review

Back 9

Final Judgment Rule - SC can only hear cases in which there has been a final judgment.

1. Writ of certiorari - SC has total discretion to accept

2. By Statute - SC required to hear appeals from 3-judge federal district courts

3. Suits between states - SC has original and exclusive jurisdiction.

4. Review of State court decisions: must not be an, already, adequate and independent state law ground for decision.

NOTE: If a state court decision rests on 2 grounds, one state and one federal, if the SC's reversal of the federal law ground will not change the result in the case, the court should be heard by a State court (SC cant hear it)

Front 10

Lower Court Review / 11th Amendment

Back 10

A. Sovereign Immunity - 11th Amendment bars suits against states in federal courts. Bars a federal court from hearing a private party's or foreign governments claim against a state government because of sovereign immunity.

Exceptions which allows federal court to hear case involving states:

1. Express Waiver - where the state expressly gives CONSENT to be sued.

2. States may be sued pursuant to federal laws adopted under section 5 of the 14th Amendment (not under any other amendments).

3. Federal government may sue state government

4. Bankruptcy Proceedings

Note: Congress can remove the states 11th Amendment Immunity in order to prevent discrimination under the 14th Amend. So a suit can be brought against a state based on 14th Amend.

B. State officers may be sued for (1) injunctive relief and (2) money damages to be paid out of their own pockets - not paid out of state treasury.

C. Abstention - Federal Courts can't enjoin pending state court proceedings. UNSETTLED QUESTION OF STATE LAW - a fed

Front 11

Legislative Power (Congress's Authority to Act)

Back 11

There must be a an express or implied power to act; no general police power held by congress except with respect to: (MILD)

1. Military
2. Indian reservations
3. Federal Land and territory
4. District of Columbia

Front 12

Necessary and Proper Clause

Back 12

Congress has the power to make all laws necessary and proper for executing any power granted to any branch of federal government.

Congress can chose any means not prohibited by the Constitution to carry out Congress's power.

Front 13

Taxing and Spending

Back 13

Congress can tax and spend for the general welfare.

1. Congress has the power to tax, and most taxes will be unheld if they:

a. Bear some reasonable relationship to revenue prodution OR

b. if Congress has the power to regulate the activity taxed. (However, neither congress nor the states have the power to tax exports to foreign countries)

2. Congress may SPEND to provide for the common defense and general welfare. Spending may be for ANY public purpose.

a. Congress can use its spending powers in an area where it has no power to regulate (i.e. attaching strings to government grants)

Front 14

Commerce Power

Back 14

Congress has the power to regulate all foreign and interstate commerce. To be within Congress's power under the Commerce Clause, the federal law regulating inerstate commerce must either:

1. Regulate the channels of interstate commerce (highways, waterways, internet)

2. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce. (Trucks, boats, etc)

3. Regulate ECONOMIC activities that have a SUBSTANTIAL EFFECT on interstate commerce.

4. INTRASTATE ACTIVITY

Regulation of intrastate activity will be upheld if it is an economic or sommercial activity and the court can conceive of a rational basis whcih congress could conclude the activity to have a substantial affect on interstate commerce. However if intrastate activity is non-commercial and non-economic it can be regulate under commerce clause.

Front 15

10th Amendment

Back 15

Is a limit to Congressional powers. States that all powers not granted to the U.S., nor prohibited to the states, are reserved to the states or the people.

1. Congress cannot compel state regulatory or legislative action (can't commandeer/ conscript state officers).

BUT can INDUCE action by putting strings on grants so long as the conditions are (1) expressly stated and (2) relate to the purpose of the spending program; May also prohibits harmful commercial activity by state governments.

Front 16

Section 5 of 14th Amendment

Back 16

Congress may not create or expand the scope of rights; may act only to prevent or remedy violations of rights through PROPORTIONATE and CONGRUENT legislation.

Front 17

Other Legislative Powers

Back 17

War related powers - Congress has the power to declare war, raise and support armied, make rules for armed forces, and organize and call the militia.

Investigatory Powers - Congress has very braod power to secure information for potential legislation and other official action.

Property Power - Congress has the power to acquire and dispose of property of all kinds. The federal taking of property must be for the purpose of effectuating an enumerated power under the Constitution. (Eminent domain prohobits property to be taken for public use without just compensation.)

Random powers - Bankruptcy, postal, power over citizenship, admiralty, power to coin $, patent and copyright power.

Front 18

Delegation of Powers

Back 18

1. No limit exists on Congress's ability to delegate legislative power.

a. Legsl power may generally be delegated to executive or judicial branch as long as intelligible standards are set and power is not uniquely confined to Congress.

2. Congress may not delegate executive power to itself or its officers.

3. Legislative Vetoes and Line-Item vetoes are unconstitutional because they lack PRESENTMENT (must be presented to Presentiment where signed or vetoed) and BICAMERALISM ( passage by both House and Senate. And The bill needs to be signed or vetoed in its entirety, not "line" by "line".

Front 19

Executive Power - Foreign Policy

Back 19

President has broad powers as Commander-in-Chief to use American troops in foreign countries, even without Congressional declaration of war

a. Effect: either (1) dismissed as political question or (2) President wins

Front 20

Treaties vs. Executive Agreements

Back 20

Treaties - Are agreements the US and a foreign country that are negotiated by the President and are effective when ratified by the Senate. Treaties will prevail over conflicting state laws. If a treaty conflicts with a federal statute , the one adopted last in time controls. If a treaty conflicts with the U.S. Constitution, it is INVALID.

Executive Agreements - An executive agreement is an agreement between the US and a foreign country that is effective when signed by the president and the head of foreign nation. NO SENATE APPROVAL REQUIRED.

a. Executive Agreements can be used for any prupose.

b. Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.

Front 21

Executive Power - Domestic Affairs

Back 21

1. APPOINTMENT

a. Principle officers - President has the power to appoint all ambassadors, public ministers, judges of the USSC, and all other officers of the US.

b. Inferior officers - Congress may vest appointment in President, department heads or lower federal courts (capable of being fired by principle officers)

c. Congress itself may not appoint members of a body with administrative or enforcement powers.

2. REMOVAL POWER

a. By President - the president can remove high level, purely executive officers at will, without any interference by Congress. However, Congress may provide statutory limitation, removal for good cause, on the Presidents power to remove all other executive appointees.

b. Congress - may remove executive officers only through the impeachment process.

3. IMPEACHMENT and REMOVAL

a. The President, the VP, federal judges and officers of the US can be impeached and removed from officer for treason, bribery, or high crimes and misdemeanors.

b. A majority vote in the