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128 Cards in this Set

  • Front
  • Back
When does the S.Ct have original jx?
1. All cases where the state is a party
What are the two forms of S.Ct appellate jx?
1. Writ of Certiori
2. Appeal
What is the writ of certiori?
1. Court has full discretion
2. Cases come from state highest courts - constistutionality of federal statute, treaty or state statute is at issue OR state statute allegedly violates federal law
2. All cases from fedearal courts of appeal
What is the S.Ct appeal process?
1. Ct must hear cases coming by appeal
2. Cases are from decisions by three-judge federal district court panels
What are requirements for federal court to have jx over action?
1. Case or controversy - no advisory opinions
2. Ripeness
3. Standing
4. Not moot
5. Not political question
6. Not barred by 11th Amd
Limits on federal jx
What is the requirement of ripeness?
There must be an immediate threat of harm
- No review of statute / regulation before enforcement UNLESS P will suffer some harm or immediate threat of harm
Limits on federal jx
What is the requirement of mootness?
If matter has already been resolved, then the case will be dismissed as moot.
- Matter is capable of repetition but evading review (events of short duration or D voluteers to stop)
- Class actions - Class rep can continue even if his personal claim is moot
Limits on federal jx
What are the components of standing??
1. Injury-in-fact
2. Causation
3. Redressability
How does P show injury-in-fact?
P must show he has been or will be directly and personally injured by the unlawful govt action affecting his rights
- Injury does not have to be economic
What is redressability?
Decision in P's favor must be able to eliminate his grievance
Congressional Conferral of Standing
Federal statute may create new interests and injury to them may be sufficient for standing.
BUT congress cannot eliminate case/controversy req.
Can a P have standing to Enforce Govt Statute?
Maybe - if P is within the zone of interests Congress meant to protect
Can P assert the constitutional rights of others?
General Rule - No
BUT - P with standing in her own right may assert rights of other IF
1. difficult for other to assert her own rights OR
2. special relationship b/t P and other
When does an organization have standing?
1. Injury in fact to members that gives them a right to sue on their own behalf
2. Injury is related to organization's purpose AND
3. Individual member participation in lawsuit is not required
Can P sue as a citizen claiming that govt action violates the law?
NO - injury is too generalized
When does a taxpayer have standing to sue?
- Has standing to litigate tax bill
- No standing to challenge govt expenditures - interest is too remote
EXCEPTION - taxpayer can sue to attack taxing and spending on Establishment Clause grounds
Limits on fed jx
Adequate and Independent State Grounds
Adequate - state grounds are fully dispositive of the case
Independent - decision is not based on federal case interpretations of identical federal provisions
If state court has NOT clearly indicated decision rests on state law - then S.Ct will take
Limits on fed jx
When will a federal court abstain from hearing a claim?
1. Unsettled quesiton of state law
2. Pending state proceedings - fed ct will not stop pending state criminal proceedings unless proven harassment or prosecution in bad faith
Limits on fed jx
Political Quesitons
1. constitutionally committed to another branch of govt
2. inherently incapable of judicial resolution
What are some examples of political questions?
- Challenges based on republican form of govt
- challenges to congressional procedures for ratifying constitutional amd
- pres conduct of foreign policy
Limits on fed jx
What is the role of the 11th Amd?
Prohibits fed courts from hearing a private party's or foreign govt's claim against a state govt
- State named as party or state has to pay retroactive damages
- Sovereign Immunity - bars suits against state govt in state court unless D consents
- Does not bar actions against local govt, actions by US or other states
What are the exceptions to the 11th Amd?
1. Certain actions against state officers - actions to enjoin officer from future actions; actions fro damages against officer personally
2. State consents - express and unequivocal
3. Congress removes the immunity - as to actions created under 14th Amd
What are Congress' powers - enumerated and implied?
Necessary and proper
War etc
Power over Citizenship
Power to Coin $$ and Fix Weights and Meaures
Patent / Copyright
Necessary and Proper Power
Congress can make all laws necessary and proper (appropriate) for executing ANY power granted to ANY branch
- N&P MUST work with another federal power
Taxing Power
Congress can tax
Most taxes upheld
- if bear some reasonable relationship to revenue production OR
- Congress has power to regulate activity taxed
Can Congress tax exports to foreign countries?
NO (neither can states)
Spending Power
Congress can spend for ANY public purpose
- Congress cannot directly legislate for general welfare - only spend for it
Commerce Power
ONLY Congress can regulate foreign and interstate Commerce
What are the requirements for a law regulating interstate commerce?
Must be one of these things:
1. Regulate the channels of interstate commerce
2. Regulate instrumentalities of interstate commerce and persons/things in intersate commerce
3. Regulate activities that have substantial effect on interstate commerce
When can congress regulate an INTRASTATE activity under substantial effect prong?
1.Must be economic/commerical activity and
2.court can see a rational basis on which Congress could conclude that activity has aggregate substantial effect
Can congress ever regulate noncommercial/noneconomic intrastate activity?
Like Lopex - Congress can only regulate if can show a substantial economic effect on interstate commerce IN FACT
What things can Congress do under War Power?
- Economic regulation
- Military Courts/Tribunals
What are the constitutional requirements for military courts/tribunals?
- Fed/state cts have no general power of judicial review over court-martial proceedings
- Military cts have jx over all offenses committed by persons in service at time of offense AND when charged
- American citizens can only be tried by military court if actual warfare closes the courts
What are the constitutional requirements for detention of enemy citizen combatants?
Citizen held in US - must have meaningful opportunity to context factual basis for detention before neutral decisionmaker
Investigatory Power
- Implied power
- Investigation must be authorized by appropriate house of congress
Property Power
- Power to dispose of and make rules for territories/other properties of US
- Federal takings must be for purpose of effectuating an enumeratred power
Is there a federal police power?
NO - but Congress has those type powers over DC, federal lands, military bases and indian reservations
Bankruptcy Power
Congres can establish uniform rules for bankruptcy
- Nonexclusive power (state laws cannot conflict with federal law)
What is Congress' constitutional postal power?
Congress can classify and place reasonable restrictions on mails BUT cannot deprive any citizen / group of general mail privilege
What is Congress' constitutional power over citizenship?
Congress has plenary power over aliens - can est uniform rules of naturalization
Can congress exclude aliens?
Yes - aliens have no right to enter US and can be refused entry based on political beliefs
EXCEPTION - Resident Aliens are entitled to notice and a hearing
Can Congress take away citizenship if you are a naturalized citizen?
NO - unless you consent
Admiralty Power
-Plenary and exclusive
How does the 10th Amendment limit Congressional power?
-All powers not granted to US,nor prohibited to the states, are reserved to the states or people
- Congress cannot compel state to regulate or legislate (can induce by spending)
- Congress can prevent harmful commercial activity by state govt
What is Congress' power under section 5 of 14th Amd?
Congress can act to prevent or remedy violations of rights recognized by the courts
- Laws must be proportionate and congruent to the violation
What is the source of power when Congress enacts divorce laws for DC?
Federal police power for DC
What is the source of power when Congress pays for highways?
Spending Power AND Commerce Clause
What is the source of power for Congress conditioning aid to states for medical programs on the state funding of AIDS research?
Spending Power
What is the source of power when Congress prohibits hunting on federal lands?
Property Power
What is the source of power when Congress bars racial discrimination at places of public accomodation?
Commerce Clause
What is the source of power when Congress requires all employers, incl state govt, to comply with federal min wage and OT provisions?
Commerce Clause
Can Congress delegate its power?
Generally yes - delegation should have intelligible std
What is a legislative veto?
Where Congress tries to overturn an executive agency without BICAMERALISM or PRESENTMENT
- invalid
What is a line-item veto?
Where Pres tries to veto just part of a bill - unconsittutional
What are the excecutive's domestic powers?
-Appointment and Removal
-Chief Executive
What is the executive appointment power?
Pres appoints ambassadors, federal judges and officers of the US
- Congress can vest the appt of inferior officers in Pres alone, in courts or in heads of department
- Congress cannot appoint administrative or enforcement agency
How can executive officers be removed from office?
PRES - can remove high level execs (Cabinet) at will
- Cong can limit (to cause) Pres power to remove other exec appointees
CONG - can only act through impeachment
When can Congress impeach?
Congress can impeach Pres, VP and other high officers for treason, bribery or other high crimes
- Does not remove person from office
- Requires majority in Senate; conviction by 2/3 in House
What is the presidential immunity?
-Absolute immunity for civil suits for damages for actions while in office
- No immunity for actions occuring prior to taking office
What is the executive privilege?
There is an executive privilege for presidential papers and conversations
- Must yeild to other important govt interests
When may the Pres grant a pardon?
- Pres can grant pardons for all federal offenses
- Pres cannot grant pardons for impeachment or civil contempt
- Congress cannot limit pardon power
How can Congress override Pres veto of act?
Veto has to be overridden by TWO-THIRDS of each house
What is a pocket veto?
Pres has 10 days to veto
If he fails to act and
- Congress is not in session, bill is vetoed
- Congress is in session, bill is law
What is the extent of Pres power to issue executive order?
1. Pres acts with expres/implied consent of Congress - max power and action valid
2. Pres acts where Congress is silent - action ok unless usurps the power of other govt branch or prevents other branch from carrying out its tasks
3.Pres acts against express wil of Cong - little authority and action invalid
What are the executive powers over external affairs?
- War
- Foreign relations
- Treaty Power
- Executive Agreements
What is the extent of the pres war power?
Pres has NO POWER to declare war
- Pres can act militarily in actual hostilities w/o congressional declaration of war
Agreements b/t US and other country negotiated by Pres
- Effective when ratified by Senate
What happens when a treaty conflicts with a state law?
Treaty wins
What happens when a treaty conflicts with a federal law?
Last in time wins
What happens when a treaty conflicts with the constitution?
Treaty is invalid
Executive Agreements
Agreement b/t US and foreign country that is effective when signed by Pres and head of foreign nation; can be used for any purpose
Does an executive agreement have to be ratified by Senate?
What happens when an executive agreement conflicts with state law?
The executive agreement wins
What happens when the exec agreement conflicts with fedearl law?
Federal law wins
When will federal law preept state law?
1. Conflict b/t state and federal law
2. State Prevents Achievement of federal objective
3. Preemption
What will happen if a state law and federal law are mutually exclusive?
State law invalidated - conflict.
Can a state law prevent achievement of a federal objective?
No - state law invalidated.
- even if state law enacted for a valid purpose
When will federal law preempt state law even without conflict?
When a fed statute/reg expressly or impliedly occupies the entire field - it does not matter that the state reg is nonconflicting.
- Factors are -
1.Comprehensiveness of the federal scheme
2.Creation of an agency to administer the law
Full Faith and Credit Clause
If judgment is entitled to full faith and credit, then must be recognized in sister states.
What are the prereqs to application of full faith and credit clause?
1. Court that rendered the judgment has jx over the parties and the subject matter
2. JUdgment was on the merits
3. Judgment is final
Can a state sue the US??
NO - unless the US consents.
- Congress can pass legislation that permits US to be sued by state in certain situations
Can suit be brought against a federal officer?
1. NO - if judgment is satisfied our of public treasury OR would interfere w/public administration (b/c then deemed against US)
2. There will be specific relief against officer as individual if acted ultra vires
When can congress tax or regulate state/local govt?
If the law/tax applies to BOTH public sector and private sector
- min wage laws
Can Congress ever regulate just the state/local govt w/o private sector?
- Civil Rights - Congress can restrict state activities that violate civil rights
- Spending Power - indirect regulation through imposing conditions on $$
When does the anti-commandeering doctrine apply?
Congress may not require state exec officials (police) to enforce federal laws - upsets dual sovereignty
Can a state tax the federal govt?
Not directly unless congress consents.
BUT state can impose nondiscriminatory, indirect taxes if they do not unreasonably burden federal govt
Privileges and Immunities Clause (Art. IV)
Prohibits discrimination by a state against NONRESIDENTS
- NO Corps or Aliens
- Protects only fundamental rights - important commercial activities and civil liberties
When is it ok for a state law to violate Priv and Imm Clause?
When state has substantial justification for different treatment
- Nonresidents either cause or are part of problem
- There are no less restrictive means to solve problem
Dormant Commerce Clause
States may not favor local economic interests or unduly burden interstate commerce
- Does apply to corp and aliens
Privileges and Immunities Clause (14th Amd)
States may not deny their citizens the privileges and immuunities of national citizenship
- Corps not protected
What are some privileges protected by 14th Amd priv and imm clause?
-Right to petition Cong for redress
- Right to vote for federal officers
- Right to interstate travel
Analysis to determine whether law violates DCC, Art. 4 or 14th Amd Priv & Imm
1. Does the law discriminate against out of staters?
2. If NOT
- Priv&Imm of Art. 4 does not apply
- If law burdens interstate commerce AND burden is greater than benefit - then law violates DCC
3. IF SO
- If law burdens interstate commerce - violates DCC; UNLESS necessary to achieve an important govt purpose
Exception - Congressional approval
Exception - market participant
- If law discriminates against out of staters re: their ability to earn a livelihood - violates priv and imm of Art. IV; Unless necessary to achieve an important govt purpose
- Law must discriminate against out of staters (cannot be corporation or alien)
- Discrimination must be re: civil liberties or important economic activities
- Discrimination must be necessary to achieve an important govt purpose
What is the power of Congress over state commerce clause regulation?
Congress can permit state regulations that violate Commerce Clause and can prohibit state regs that would otehrwise be upheld under Commerce Clause.
When can a state violate the commerce clause and protect local economic interests?
1. When Congress said ok
2. Important State Interest - law furthers an important noneconomic state interest and there is no reasonable nondiscriminatory alternative
3. State as market participant - state buys, sells, hires, gives subsidies
Is a state law re: internal governance of a corporation incorporated in the state subject to DCC?
Not as much - states have strong interest in regulating corporations and therefore they can regulate here even though substantial impact on interstate commerce
Four requirements of state tax on interstate commerce
1. Cannot discriminate against interstate commerce (violates DCC)
If nondiscriminatory tax
2. Tax must apply to an activity having a SUBSTANTIAL NEXUS to taxing state
3. Tax must be FAIRLY APPORTIONED according to rational formula
4. Tax must fairly related to services/benefits supplied by state
How do you determine if a taxed activity has a substantial nexus to state?
There must be significant or substantial activity within the taxing state.
- there must be more than min contacts
What are the types of state taxes of interstate commerce?
- Use taxes
- Sales Taxes
- Ad valorem property taxes
- Privilege, license, franchise, occupational taxes
Use Taxes
- Imposed on goods that are purchased outside state but used w/in (buyer's state)
- Use tax INVALID if higher than sales tax
Sales Taxes
Taxes imposed on seller of goods for sales done w/in state
Ad Valorem Property Taxes
Taxes based on the assessed value of the property (real/personal) in question
- Cannot tax commodoties in course of interstate commerce
- Can only tax instrumentalities (trucks) if have taxable situs and proper apportionment
When is something in interstate transport so that it is exempt from ad valorm taxes?
1. Begins when cargo (1) delivered to interstate carrier OR (2) actually starts its interstate journey
2. Ends when cargo reaches destination
Does a break in the transit cease interstate status?
NO - will not destroy interstate character unless break intended to end / suspend shipment
How do you know if an instrumentality (truck)has taxable situs?
Must be sufficient contacts with the taxing state to justify a tax - truck has to receive benefits and protections from the state
What is fair tax apportionment for an instrumentality (truck)?
Tax fairly approximates teh average physical presence of the instrumentality in the taxing state
Can a taxpayer's home state tax instrumentalities?
Yes - can tax full falue of trucks used in interstate commerce
UNLESS taxpayer can prove that a defined part of the truck has acquired taxable situs somewhere else
Privilege, license, franchise, occupational taxes
Doing business taxes
- Measured by flat amount or by proportional rate based on contact w/state
Will a seller ever have to collect/pay a use tax to buyer's state?
Interstate seller may have to collect use tax if seller has sufficient nexus to taxing state (has offices there)
What are the constitutional restrictions on power over individuals?
-Bill of Rights
- Thirteenth Amendment
- Fourteenth and Fifteenth Amendments
- Commerce Clause
- Rights of national citizenship (Priv&Imm of 14th)
Which amendments have not been incorporated to the states?
- 5th Amd grand jury indictment requirement
- 7th Amd right to jury trial in civil cases
How does the 13th Amd restrict power over people?
Congress can prohibit racially discriminatory action by ANYONE (private or govt)
How do the 14th and 15th Amd restrict power over people?
- 14th - prevents STATES from depriving of life, liberty or property w/o DP
-15th - prevents FED and STATE GOVT from denying right to vote b/c of race
What is the effect of Sec 5 of 14th Amd?
Gives Congress power to adopt appropriate legislation to enforcde rights/guarantees provided by 14th Amd
- Congress cannot expand existing constitutional rights or create new ones - can only enact laws to prevent/remedy violations of rights already recognized by courts
What must Congress show to adopt a law under Sec 5 of 14th Amd?
Must point to history or pattern of state violation of such rights and adopt legislation CONGRUENT AND PROPORTIONAL to solving the violation.
How does the Commerce Clause restrict power over people?
Congress can prohibit private racial discrimination in activities that might have substantial effect on interstate commerce
State Action Requirement
To show constitutional violation, state action must be involved
When can state action be found in actions of private people?
1. Private person performs an exclusive public function OR
2. Private person has significant state involvement
When is a private individual performing an exclusive public function?
Activiites that are so traditionally the exclusive perogative of the state
-Running a town; Conducting an election
When does the action of a private individual have significant state involvement?
When the state AFFIRMATIVELY facilitates, encourages or authorizes actions of discrimination by citizens
-Enforcing restrictive covenants through state courts
-Allowing state official to act in discriminatory manner under color of law
Retroactive Legislation - What are the constitutional considerations?
1. Contract Clause
2. Ex Post Facto Laws
3. Bills of Attainder
4. Due Process Considerations
How does the Contract Clause forbid retroactivity?
-Applies to STATES
-Prohibits state from enacting any law that retroactively impairs contract rights
If fed govt passes law that retroactively impairs contract rights - what happens?
-Not contract clause violation
-Flagrant contract impairment would violate 5th Amd DP clause
What is the standard for determiningwhether the impairment of a private contract is ok?
Intermediate Scrutiny
-State legislation that substantially impairs private contract is invalid UNLESS
--legislation serves an important/legitimate public interest
--legislation is reasonable and narrowly tailored means of promoting that interest
(moratorium on mortgage foreclosures during severe depression)
What is the standard for determining whether impairment of a public contracts is ok?
Stricter Scrutiny
-IF state is a party to contract, the test is essentially the same as private BUT legislation will get stricter scrutiny
Ex Post Facto Laws
Law that retroactively alters CRIMINAL offenses or punishments in a substantially prejudical manner to punish someone for a past activity
How do you know if a statute is ex post facto?
1. Makes criminal an act that was innocent when done
2. Increases punishment for act than was allowed when act was done
3. Reduces the EVIDENCE required to convict person of crime
Bills of Attainder
Legislative Acts that inflicnt punishment on people w/o judicial trial
- NEither Fed nor STate can pass
Retroactivity and Due Process
Even if retroactive law does not violate Contracts, Ex post etc - must pass DP
- If law does not relate to fundamental right - then need only rational relation to legit govt interest