South Dakota 2011 Constitutional Law Mbe

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Article 3 Standing

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INJURY
-- Must be injured or immediately will be
-- Can only allege injuries personaly suffered
-- Injunctive/declaratory relief must be evidenced by likelihood of future harm

CAUSATION AND REDRESSABILITY
-- D caused the injury so that a favorable court decision will remedy it
-- NO ADVISORY OPINIONS

NO THIRD PARTY STANDING
-- Exception:close relationship (doctor/patient)
-- Exception: if the injured party can't assert own claims
-- Exception: Associational standing - organization may sue for its members if
a. members would have standing
b. interests are germane to organization's interests
c. neither claim or relief requires individualized participation

NO GENERALIZED GRIEVANCES
-- No "citizen" or "taxpayer" standing
-- Exception: taxpayers can sue for federal spending violating Establishment Clause

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Ripeness

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TWO CRITERIA

1) Hardship that will be suffered without preenforcement review

2) fitness of the issues and the record for judicial review

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Mootness

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Rule: if events end the P's injury after filing suit, case must be dismissed

-- Exception: wrong capable of repitition but evading review

-- Exception: voluntary cessation by D to avoid suit

-- Exception: class actions not moot as long as 1 member still has ongoing injujry

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Political Question Doctrine

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Rule: political questions are not to be adjudicated

REPUBLICAN FORM OF GOVERNMENT CLAUSE
-- Art. 4, s4 = nonjusticiable

CHALLENGES TO PRESIDENT'S CONDUCT ON FOREIGN POLICY

CHALLENGES TO IMPEACHMENT AND REMOVAL

CHALLENGES TO PARTISAN GERRYMANDERING

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Supreme Court Review

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1) All come from cert. and are discretionary review

2) Appeals exist for decisions of 3-judge panels in federal district courts

3) SCOTUS has ORIGINAL and EXCLUSIVE jurisdiction for
a) suits between state governments

4) FINAL JUDGMENT RULE
-- Can only hear cases from final judgment of highest supreme court of state, Courts of Appeals for U.S., or three-judge district panels

5) MUST NOT BE AN ADEQUATE AND INDEPENDENT STATE GROUND TO DECIDE CASE, OR NOT JURISDICTION
-- occurs if there are state and federal claims and the federal claims will not change the outcome from the adjudication of the state claims

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Lower Federal Court Review and Sovereign Immunity

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Federal and state courts MAY NOT hear suits against state governments

SOVEREIGN IMMUNITY
-- 11A bars suits against states in federal court
-- State's generally can only be sued to the extent they allow themselves to be sued in state courts
-- Exceptions
a) waiver
b) ANY 14A, Article 5 suits for EP or DP
c) federal gov. can sue states
d) bankruptcy

SUITS AGAINST STATE OFFICERS ARE ALLOWED
-- for injunctive relief
-- money damages out of their own pockets
-- MAY NOT be sued if the STATE TREASURY will be paying the judgment

FEDERAL COURTS MAY NOT ENJOIN PENDING STATE COURT PROCEEDINGS

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Congress's Authority to Act

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1) Must be express or implied Congressional power
-- MILD exception
a) Military
b) Indian Lands
c) DC

2) "Necessary and Proper Clause": Congress can use any means not prohibited by the C to carry out its authority

3) Taxing and Spending Power and Commerce Power
-- Congress may tax and spend for the GENERAL WELFARE

4) COMMERCE POWER
-- Congress may regulate channels, instrumentalities, and people/things in interstate commerce
-- Congress may regulate economic activity having a SUBSTANTIAL EFFECT on interstate commerce
-- CUMULATIVE IMPACT (Wickard) may be used only in ECONOMIC activities

5) 10A Limitations
-- Congress can't force states to enact laws
-- Congress can induce states by putting conditions on grants if expressly stated and related to purpose
-- Congress can prohibit harmful commercial activity by states (selling DMV info)

6) 14A, Section 5 Power
-- Can't create new rights or expand scope of rights
-- CAN act to prevent or remedy violations of rights if laws are
a) proportionate, and
b) congruent

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Congress's Ability to Delegate Powers

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1) No limit on Congress's ability to delegate legislative power
-- Every delegation has been upheld

2) Legislative Vetos and Line Item Vetos ARE UNCONSTITUTIONAL

3) For Congress to Act, there must ALWAYS BE:
a) BICAMERALISM
b) PRESENTMENT

4) CONGRESS MAY NOT DELEGATE EXECUTIVE POWER TO ITSELF

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Executive Power: Treaties

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TREATIES
-- Negotiated by president and ratified by Senate
-- Treaties prevail over conflicting STATE laws
-- Treaties v. federal statutes: ONE ADOPTED LAST IN TIME CONTROLS
-- Constitution trumps treaties

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Executive Power: Executive Agreements

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Agreement b/w US and foreign state effective when signed by President
-- No senate approval needed
-- Can be used for ANY purpose (treaty=EA) and none have ever been struck down
-- Constitution > Federal Laws > Executive Agreement > State Laws

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Executive Powers: Commander in Chief

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President has broad powers as CIC to use troops in foreign countries
-- ON MBE: best answer says these are "political questions"
-- Second best answer says "broad power" and approves activity

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Executive Powers: Appointment Power

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1) President appoints Ambassadors, Federal Judges, and OFFICERS of the US with SENATE confirmation

2) Congress may vest appointment of inferior officers to the president, dept. heads, or federal courts
-- President: officers
-- Congress: inferior officers
-- "Inferior officer" means one who may be fired by an "officer" of the U.S.

3) Congress may not give itself or its officers ANY appointment (i.e. EXECUTIVE) power

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Executive Powers: Removal Power

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1) Unless limited by statute, president may fire any executive branch official
-- Can't limit cabinet removal power

2) For CONGRESS to LIMIT removal power, it must be
a) an office where independence from the president is desirable (like special prosecutor), AND
b) Congress can't prohibit removal outright, it can only limit it to GOOD CAUSE

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Impeachment and Removal

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President, VP, federal judges, and ALL officers of the US can be impeached for
a) treason
b) bribery
c) high crimes and misdemeanors

HOUSE: majority vote
SENATE: 2/3 approval, then removed

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Presidential Immunities and Privileges

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1) Immunity from Civil Suits for money damages for ACTION TAKEN WHILE IN OFFICE
-- No immunity for actions occuring before he took office

2) President has Executive Privilege for PRESIDENTIAL PAPERS and CONVERSATIONS
-- BUT, these must yield to more important governmental functions (i.e. Nixon trial)

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Executive Powers: Pardon Power

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President can pardon those accused and convicted of FEDERAL CRIMES
-- NO pardons for impeachment
-- CANNOT pardon for state convictions
-- NO pardons alleviating civil liability

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Federalism: Supremacy Clause

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Constitution and laws/treaties made pursuant to it are supreme to state

Express Preemption: "Fed. law is exclusive and comprehensive"

Implied Preemption
-- Federal law wins where fed. v. state laws are mutually exclusive
-- Federal law wins if state law impedes a federal objective
-- If Congress evidences a clear attempt to preempt, it does preempt

States may not tax or regulate federal activity

FEDERAL GOV. NEVER HAS TO COMPLY WITH STATE ENVIRONMENTAL LAWS

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Dormant Commerce Clause and Privileges and Immunities Clause of Art. 4 (lots of info)

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Rule: State law is UC'l if it places an UNDUE BURDEN on interstate commerce

PRIVILEGES AND IMMUNITIES CLAUSE OF ART. 4
-- No state may deny citizens of other states of the P&I it affords to its own citizens
-- Occurs when states are discriminating against out of staters (like waiting 1 year for health care)
-- Violates right to work, travel, etc.

PRIVILEGES OR IMMUNITIES CLAUSE OF THE 14A
-- Always a wrong answer unless the question involves the right to travel

TEST
1) Does the law discriminate against out of staters?
-- Yes/No
2) If the law DOES NOT discriminate
-- Art. 4 does not apply
-- If it burdens interstate commerce by exceeding its benefits, violates dormant commerce clause
3) If the law DOES discriminate
-- If it burdens interstate commerce, it violates DCC, UNLESS it is NECESSARY to achieve an IMPORTANT governmental purpose
-- Like SS (presumption of DCC violation, least discriminatory alternative)
EXCEPTION: Congressional approval
EXCEPTION: Market participant - State may prefer its own citizens in receiving benefits of gov.-owned business (in-state tuition)
-- If the law discriminates against out of staters' ability to work/earn livelihood, violates Art. 4
-- The law must
a) discriminate against out of staters
b) regard to civil liberties or economic activities (work, not hunting license)
c) N/A to corp.'s and aliens
-- It will be allowed, but must be NECESSARY to achieve an important=substantial governmental purpose (no less restrictive means)

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State Taxation and Interstate Commerce

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1) States may not use their tax system to help in-state businesses

2) A state may only tax activities if there is a SUBSTANTIAL NEXUS to the state
-- Can't tax gross receipts from business ventures in other states, e.g.

3) State taxation of interstate business must be FAIRLY APPORTIONED

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Full Faith and Credit

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Federal or State courts in one state must give full faith and credit to judgments of courts in another state so long as
a) the court rendering judgment had PJ and SMJ
b) the judgment was on the merits
c) the judgment is final

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State Action Doctrine

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1) Constitution applies only to state action

2) Congress can only apply constitutional NORMS to private action
-- 13A: Congress can use it as a basis to enact anti-race discrimination statutes (section 2)
-- Commerce Power can be used to apply C'l norms to private conduct, like Civil Rights Act of 1964 (Katzenbach)
-- Congress CANNOT use 14A, section 5 to regulate private behavior (Morrison: no civil damages for rape victim); can regulate ONLY state and local gov.

EXCEPTIONS: SITUATIONS WHERE PRIVATE CONDUCT MUST COMPLY
-- Public Function: Very Narrow: state action if private actor is performing a task TRADITIONALLY, EXCLUSIVELY DONE BY STATE
-- Entanglement: C applies if gov. authorizes, encourages, or facilitates UC'l activity

COMMON HYPOS, MIXED BAG:
-- Courts enforcing racially restrictive covenants = SA
-- Gov. leases premises to restaurant that racially discriminates = SA
-- State provides books to racially discriminating schools = SA
-- Private school that is over 99% funded by state fires teacher for speech: NO SA
-- NCAA orders suspension of basketball coach = NO SA
-- Private entity regulates interscholastic sports w/in a state = SA
-- Private club with liquor license racially discriminates = NO SA

PATTERN?
-- Courts are more likely to find SA in race discrimination entanglement

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Application of the BOR

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1) BOR apply directly only to the federal gov.

2) Applies to states through INCORPORATION into DP clause of the 14A, EXCEPT
-- 3A quartering soldiers
-- 5A right to grand jury
-- 7A right to civil jury trial
-- 8A right against excessive fines

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Levels of Scrutiny

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RATIONAL BASIS
-- A law is upheld if it is RATIONALLY related to a LEGITIMATE governmental purpose
-- Means: rational
-- Burden: on challenger to prove there is no rational basis
-- Outcome: gov. almost always wins

INTERMEDIATE SCRUTINY
-- Law upheld if it is SUBSTANTIALLY related to an IMPORTANT governmental purpose
-- Means: must be "narrowly tailored" but not least restrictive
-- Burden: ON GOVERNMENT

STRICT SCRUTINY
-- Law upheld only if it is NECESSARY to achieve a COMPELLING governmental purpose
-- Means: necessary and least restrictive
-- Burden: Government
--Outcome: gov. almost always loses

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Individual Rights (DP and EP) Defined

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Procedural DP: procedures that follow when the gov. takes away life, liberty, or property
-- Focus: on the hearing

Substantive DP: whether the government has adequate reason for taking life, liberty, or property from EVERYONE (i.e. people not treated differently)
-- Focus: levels of scrutiny, economic liberty, privacy

EP: whether gov.'s differences in treatment of people are adequately justified
-- Focus: outcome dependent on level of scrutiny assigned

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Procedural Due Process

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TWO PART TEST

1) Has there been a deprivation of life, liberty, or property?
a) Deprivation of Liberty: occurs if there is a loss of significant freedom provided by statute or the C
-- Harm to reputation not enough
-- Must come from written law creating liberty deprived
-- Adults must have notice/hearing before institutionalized
-- Parent institutionalizing a child only requires neutral screening
b) Deprivation of Property: occurs if there is an entitlement and that entitlement is not fulfilled
-- TEST: entitlement exists if there is a reasonable expectation to continued receipt of the benefit
-- If you are promised a job for a year = expectation of employment
-- No guarantee a K will be renewed
c) Negligence by gov. is not sufficient for deprivation
-- Must be at least reckless (probably intentional)
-- In emergencies, gov. is liable only if it "shocks the conscience" by showing intent to harm the victim
d) Generally, gov.'s failure to protect from private harm is not a DP violation
-- Failure to respond to child abuse - no failure, unless gov. had custody or control

2) What procedures are required if there has been a deprivation?
-- BALANCING TEST:
a) The importance of the interest to the individual
b) The ability of additional procedures to increase the accuracy of the fact-finding
c) Governmental interests in efficiency, etc.

EXAMPLES
-- Welfare Benefits: notice and hearing before elimination
-- Social Security Disability: post-termination hearing
-- Student Discipline: notice of allegations and opportunity to explain (no hearing)
-- Custody Termination: notice and hearing
-- Punitive Damages: instruction to jury and judicial review
-- American Citizen held as Enemy Combatant: DP of notice, counsel, factual hearing
-- Prejudgment attachment of assets, except in exigent circumstances, must have notice and hearing

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Economic Liberties and DP

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1) Only RB test used for laws affecting economic rights (post-Lochner)
-- Wage/hour law, trade practices, etc.

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Takings Clause

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Rule: gov. may take private property for public use so long as there is just compensation

THREE-PART TEST:

1) IS THERE A TAKING?
-- POSSESSORY TAKING:
a) Gov. confiscates personal property
b) REGULATORY TAKING:
-- Gov. regulation is a taking if it leaves NO REASONABLE ECONOMICALLY VIABLE USE of the property
-- Decreased value is not enough
-- Laredo: cable TV boxes = taking
-- Penn Central: decrease in value isn't enough, if still uses
-- Lucas: preventing development of land = taking
-- Governmental conditions on development of property must be justified by a benefit that is roughly proportionate to the burden
-- If benefit approximates burden = no taking
-- Property owner may bring takings challenges to regulations that existed at the time the property was acquired (succeeds previous owner's rights)
-- Temporarily denying use of property is not a taking so long as gov.'s action is REASONABLE

2) Is it for Public Use?
-- Gov. can't take for private use, but "public use" is broadly interpreted
-- Gov. must act out of reasonable belief that the taking would be for the pulic
-- Kilo: taking some property to give to private business = not taking

3) Is just compensation paid?
-- measured in terms of the loss to the owner by FMV at time of taking
-- Benefit to gov. or meaningful loss to takee is NOT a factor

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Contracts Clause

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Rule: No state shall impair the obligations of contracts
-- Applies only to state/local interference with EXISTING K's
-- TEST: INTERMEDIATE SCRUTINY
a) Does the legislation substantially impair a party's rights under existing K?
b) If so, is the law reasonably and narrowly tailored means of promoting an important/legitimate public interest?
-- Note (this is different than traditional Intermediate Scrutiny)
-- State or local interference with governmental K's must meet: strict scrutiny
-- Ex Post Facto does NOT apply in civil cases, so a retroactive civil liability need only meet RB scrutiny