Constitutional Law - Government Powers

Front 1

3 branches of government and their constitutional sources

Back 1

1 - legislative (Art. I)

2 - executive (Art. II)

3 - judicial (Art. III)

Front 2

Define judicial review

Back 2

The judiciary can - although it is not enumerated in the text of the Constitution - review an act of another branch of government (Marbury v. Madison) or of a state's highest court (Martin v. Hunter's Lessee) and declare that act unconstitutional

Front 3

11th Amendment's limitation on judicial power

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States cannot be sued for money damages in either state or federal court, unless the state consents to the suit, or the U.S. Congress expressly allows it under their 14th Amendment powers. Local governments can be sued, however, and the federal government can do the suing.

Front 4

How to sue the government for money

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File against a state officer in his individual capacity. Money damages are recoverable from them, personally. Only applicable if they were acting outside of the law

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Original jurisdiction of the Supreme Court

Back 5

The following cases may be held first in the Supreme Court:

(1) affecting ambassadors, other public ministers, and consuls

(2) those in which a state is a party

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Appellate jurisdiction of the Supreme Court

Back 6

SCotUS has discretionary jurisdiction through the process of certiorari. SCotUS is the only federal court to have this power

SCotUS must hear cases appealed under select statutes, like the Voting Rights Act

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Legislative limitations on SCotUS appellate jurisdiction

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Congress can control SCotUS' docket by legislating exceptions to jurisdiction

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Doctrine of adequate and independent state grounds

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Michigan v. Long and New Federalism. SCotUS can only review a state court judgment if it turned on federal grounds. SCotUS has no jurisdiction if the judgment below rested on an adequate and independent state ground.

- Arises only with SCotUS jurisdiction, and only in review of a state court judgment

Front 9

Define justiciability

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Federal jurisdiction is limited to cases and controversies. This requires plaintiffs to have standing, and the legal question to be timely, not advisory or political, and not involving strong state interests requiring abstention

Front 10

Define standing

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Plaintiffs need to have standing - a concrete interest in the outcome - in order to bring a case. A plaintiff must show injury, causation, and redressability

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Standing - Define injury

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A concrete and particularized injury to P. Need not be physical or economic. Future injuries need to be actual and imminent

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Standing - Define causation

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The injury is fairly traceable to the defendant's violation of a constitutional or other federal right

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Standing - Define redressability

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A favorable court decision must be likely to remedy the injury. Past injuries are redressed through damages. Future injuries are redressed through injunctions

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Standing - Prudential standing

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P's injury must come within the zone of interests protected or regulated by the federal right, and cannot be a generalized grievance that does not give P an adequately particularized injury

Front 15

Taxpayer standing

Back 15

- Taxpayers always have standing to challenge their own tax liability

- Taxpayers never have standing to challenge government expenditures, unless it's an Establishment Clause challenge for a specific appropriation

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Third-party standing

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Plaintiffs cannot raise the rights of someone else, unless they are involved in the same exchange or transaction

Front 17

Organizational standing

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Organizations can bring an action if they suffer an injury, or can sue on behalf of its members if (1) the members would have standing to sue, themselves, and (2) the interests at stake are germane to the organization's purpose

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Define Ripeness

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The readiness of a case for litigation. If the case is not fully developed, the injury would be speculative and resolution would be premature

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Define Mootness

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A live controversy must exist at each stage of review, or else further legal proceedings would have no effect

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3 exceptions to mootness

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(1) Capable of repetition, yet evading review - cases that can often recur, yet will not last long enough to make it through the courts will not be held moot

(2) voluntary cessation - If D voluntarily ceases its conduct, it will not make the case moot if court is not assured that wrong will not be repeated

(3) class actions - resolution of the named plaintiff's claim does not render the class moot

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Advisory opinions

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Federal courts cannot issue advisory opinions on hypothetical disputes, such as the constitutionality of proposed legislation. However, declaratory judgments (determination of legal rights of parties when they're in immediate danger) are permissible

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Political questions

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If the matter in controversy is better resolved by another branch of government, the judiciary will not rule on it

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Abstention - Pullman doctrine

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Federal courts will refrain from ruling on a federal claim that depends on the resolution of an unsettled issue of state law

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Abstention - Younger abstention

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Federal courts will not enjoin a pending state criminal case with strong state interests, unless the state claim is harassment or prosecuted in bad faith

Front 25

3 powers that the legislature DOES NOT HAVE

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(1) Promotion of the general welfare

(2) A police power

(3) A free-standing Necessary and Proper power. The Necessary and Proper clause only works to fulfill another legislative power

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3 Congressional powers most tested on the MBE

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(1) Taxing. Generally the power best cited to support a taxation

(2) Spending. Generally the power best cited to support a disbursement of federal money

(3) Commerce. Generally the power best cited to support anything else

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Scope of Congress' power to regulate interstate commerce

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Congress can regulate the channels and instrumentalities of interstate commerce, as well as intrastate commerce that has a substantial effect on interstate commerce

Front 28

"Substantial effect" under Congress' power to regulate interstate commerce - economic activity

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Economic activity is judged by the impact that it would have, if pursued by everyone in the aggregate (Wickard v. Filburn). The presumption is that it does have a substantial effect

Front 29

"Substantial effect" under Congress' power to regulate interstate commerce - non-economic activity

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Congress would have to actually demonstrate that a non-economic activity has a substantial effect on interstate commerce

Front 30

Congress' Taxing power

Back 30

Supports Congressional ability to impose a non-export tax that is rationally-related to raising revenue, even if the tax is actually being used to prohibit something

- Tax must be geographically uniform

Front 31

Congress' Spending power

Back 31

Congress has the power to spend for the "general welfare" - any public purpose. Often used to regulate states through "bribes" (highway funds for minimum drinking ages).

Front 32

Anti-commandeering principle

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Congress cannot force states to adopt or enforce specific regulatory programs by either commandeering them to enact certain laws, or by commandeering state officials to carry out federal programs

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Congress' war powers

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Congress can:

(1) Declare war and maintain the army and navy

(2) Provide for military trial of enemy combatants and civilians, but not for U.S. civilians

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Congress' property power

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Congress can dispose of any property owned by the U.S., and can take private property for public use through eminent domain, with just compensation, in order to effectuate an enumerated power

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Congress' 13th Amendment powers

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Congress has the power to pass laws rationally related to racial discrimination, whether it is done in public or in purely private contexts

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Congress' 14th Amendment powers

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Congress can remedy violations of individual rights by states, but cannot redefine those rights. Remedies must be congruent and proportional to the individual right protected

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Congress' 15th Amendment powers

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Congress can ensure that there is no racial discrimination in voting

Front 38

4 powers exclusive to the executive

Back 38

(1) Pardon power

(2) Veto power

(3) Appointment and Removal of Officers

(4) Foreign Affairs

Front 39

Presidential power to pardon

Back 39

The President can pardon or commute punishment for all federal offenses. This power cannot be limited by Congress

Front 40

Presidential power to veto

Back 40

When Congress passes a bill, the President has 3 options:

(1) Sign the bill into law,

(2) Veto the bill within 10 days (can be overridden by Congress with 2/3 majority vote), or

(3) If Congress is out of session at the end of the 10 days, the President can "pocket veto" and do nothing

President cannot "line item" veto

Front 41

Presidential and Congressional power to appoint and remove executive officers

Back 41

Only the President or his appointees can hire or fire executive officers (those who take action on behalf of the U.S.). Some senior offices require Senate approval.

Congress cannot give executive power to anyone that it can hire or fire

Front 42

How treaties are made

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President negotiates treaties, but they have to be approved by 2/3 of the Senate. Once approved, it has the same authority as a statute, and trumps conflicting state laws, as well as prior federal laws

Front 43

Congressional impeachment of executive officer

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House needs to initiate process with majority voting to accuse officer of crimes. Trial happens in Senate, with conviction requiring 2/3s of votes. Remedy is removal from office

Front 44

Define impoundment

Back 44

President has discretion to spend or withhold funds, but if a statute unambiguously requires funds to be spent, President cannot refuse to do so

Front 45

Define legislative veto

Back 45

The unconstitutional practice of Congress reserving to itself the right to disapprove of future executive actions by simple resolution. If Congress wants to override executive action, it has to pass a bill to do so, giving President the opportunity to veto

Front 46

Delegation of congressional powers

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Congress can delegate its powers to executive agencies, so long as there are intelligible standards governing the exercise of that delegated power. These standards are almost never violated

Front 47

Immunities - President

Back 47

(1) Absolute immunity for official acts

(2) No immunity for acts done before taking office, or acts unrelated to office,

(3) Executive privilege to not reveal confidential communications with advisers, though this can be outweighed by a specifically demonstrated need (Nixon)

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Immunities - Judges and prosecutors

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Absolute immunity for all judicial and official acts, but can be liable for non-judicial acts

Front 49

Immunities - Legislators and their aides

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Absolute immunity for conduct in the regular course of the legislative process (Speech and Debate clause).

Front 50

Federal immunity from states

Back 50

States have no power to regulate the federal government unless Congress permits it or the regulation is not inconsistent with existing federal policy.

States cannot directly tax the federal government or its instrumentalities

Front 51

State immunity from federal government

Back 51

Generally, the federal government has power to regulate states, limited only by its enumerated powers

Front 52

Dormant commerce clause doctrine

Back 52

Because the Commerce clause gives Congress the power to regulate interstate commerce, it follows that states are unable to do so. Therefore, in the absence of federal regulation, state regulation of commerce is valid so long as:

(1) It does not discriminate against out-of-state interests,

(2) It does not unduly burden interstate commerce (rarely struck down on this ground), and

(3) It does not apply to wholly extraterritorial activity

Front 53

Exceptions to the "no discrimination" requirement of the dormant commerce clause

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A state can discriminate against out-of-state interests:

(1) When the state is acting as a market participant (a buyer or a seller),

(2) When it is acting to subsidize its own citizens,

(3) If Congress expressly consents to the conduct

Front 54

Privileges and Immunities of State Citizenship under Art. IV

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There can be no legal requirement of residency for private employment. States cannot require that you live or reside in the state to work in the state

Front 55

State taxation of interstate commerce

Back 55

To comport with the Commerce clause:

(1) The state must have a substantial nexus (significant contacts) with the activity,

(2) Tax liability must be fairly apportioned among states,

(3) The tax does not have a discriminatory effect that directly favors commercial advantage to local businesses, and

(4) The tax must be fairly related to the services provided

Front 56

State ad valorem property taxes

Back 56

Value-based property taxes on commodities and instrumentalities

Commodities are goods that move from state to state. States receive tax on commodities when they are stopped within the state on tax day, but cannot tax commodities that are merely passing through.

Instrumentalities are transportation equipment that moves commodities. Each state in which the instrumentality is used can tax it, fairly apportioned to the amount of time it is in the state

Front 57

Federal preemption of state law

Back 57

When a state law directly or indirectly conflicts with federal law, the state law is overridden.

Front 58

Federal preemption of the field

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When Congress intends for federal law to be the only regulatory structure (through pervasiveness of regulation or strength of federal interest), it preempts the field, and any state law - regardless of inconsistency with the federal scheme - is preempted

Front 59

Interstate compacts

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States can enter agreements with other states, but Congressional approval is required if it impacts federal rights

Front 60

Full Faith and Credit Clause

Back 60

States have to give full effect to out-of-state judgments if it was made:

(1) With jurisdiction over parties and subject matter,

(2) On the merits, and

(3) As a final order