Barbri - Constitutional Law

Federal Judicial Power

Defined by Art. III of the Const.

Matter before the court must be a JUSTICIABLE CASE OR CONTROVERSY

*No advisory opinions - EVER

Justiciability Requirements

1. Standing

2. Ripeness

3. Mootness

4. No Political Questions

Standing

Whether P is a proper party to bring the matter to court:

1. Injury in fact

2. Causation & Redress-ability

3. No third party standing

4. No generalized grievances

Standing - Injury in Fact

P must allege and prove that he or she has been injured or will be imminently injured.

- must assert injuries that they personally have suffered

(For questions on MBE about "the best standing," look for plaintiffs that suffered monetary loss)

Standing - Injunctive / Declaratory Relief

P seeking an injunction or declaratory relief must show a likelihood of future harm

Standing - Causation

P must allege and prove that the D caused the injury

Standing - Redressability

A favorable court decision can remedy the harm

- if a federal court ruling would have no effect then it is merely an advisory opinion

Standing - No Third Parties

In general, a P cannot bring a claim on someone else's behalf.

Standing - Third Party Exceptions

Third party standing allowed if:

1. Close relationship (doctor/patient; NOT non-custodial parent).

2. Injured party is unlikely to assert their own rights (e.g. association attacks law to prevent sharing membership list bc members cant attack w/o disclosing identities)

3. Organization

Standing - Organizations

Organization may sue for its members if

1. individual members would have standing;

2. the interests are germane to the organizations purpose; and

3. neither the claim nor relief requires participation of individual members.

Standing - No Generalized Grievances

P must not be suing solely as a citizen or tax payer interested in having the govt follow the law. A general legal, moral, or ideological objection to govt action is not a sufficient injury

Standing - Generalized Grievances Exceptions

1. Taxpayers have standing to challenge the government expenditures pursuant to federal (or state and local) statutes as violating the establishment clause.

2. A taxpayer has standing to litigate their tax bill (e.g., whether they really owe X dollars)

3. Citizen has standing to allege federal action violates 10th Amend. by interfering with the powers reserved to the states so long as there is injury in fact and redressability.

Ripeness

Whether a federal court may grant pre-enforcement review of a statute or regulation

- hardship that will be suffered without pre-enforcement review

- fitness of the issues and the record for judicial review (does the court have all that it needs to effectively decide the issue?)

Mootness

P must present a LIVE CONTROVERSY

- If events after the filing of a lawsuit end P's injury, the case must be dismissed as moot

- non-frivolous money damages claim will keep the case alive

Mootness - Exceptions

1. The alleged action is capable of repeated harm but escapes judicial review because of its inherently limited time duration (e.g. pregnancy/abortion)

2. Voluntary Cessation (defendant voluntarily halts the offending conduct, but is free to resume it at any time)

3. Class action suits (only one member of the class needs to have an ongoing injury)

Political Question Doctrine

Political questions involve issues (1) constitutionally committed to another branch of government or (2) inherently incapable of judicial resolution.

Cases that are dismissed as non-justiciable political questions:

1. Guarantee each state a republican form of government (guarantee clause)

2. President's foreign policy

3. Impeachment and removal process

4. Partisan gerrymandering (where a legislature draws election districts to maximize safe seats for the party in control of the legislature)

Supreme Court Review - Writ of Certiorari

Granted if 4+ justices vote to hear the case

1. All cases from State court

2. All cases from U.S. Court of Appeals

Supreme Court Review - Appeals

Appeals exist for decisions of three-judge federal district court panels

Supreme Court Review - Original & Exclusive Jurisdiction

Suits between state governments

Supreme Court Review - Final Judgment

In general, for SCOTUS to hear a case only after there has been a final judgment

- Highest state court, United States Court of Appeals, or a three-judge federal district court

Supreme Court Review - Independent and Adequate State Grounds

No SCOTUS review if decision is supported by independent and adequate state grounds

- If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court's reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it

Federal Courts - Sovereign Immunity

Federal courts (and state courts) may not hear suits against state governments.

11th Amendment: Bars suits against states in federal court

Sovereign Immunity: Bars suits against states in state court or in federal agencies

Federal Courts - Sovereign Immunity Exceptions

1. Express consent/waiver of sovereign immunity (explicit, not implied)

2. Congressional Authorization - Section 5, 14th Amend (but Congress cannot override sovereign immunity using any other congressional power)

3. Federal government may sue state governments

4. Bankruptcy proceedings

5. Suits pursuant to statutes adopted by Congress under its power to raise an army and navy

Federal Courts - State Officers

Suits against State Officers are allowed if

1. Sued for injunctive relief

2. Sued for money damages to be paid out of their own pockets

3. May not be sued if it is the state treasury that will be paying retroactive damages

Federal Courts - Actions Against Local Governments

Local governments (for example, a city or county) and entities like police departments are not protected by sovereign immunity.

- So these entities can be sued.

Federal Courts - Abstention

Federal court has jurisdiction but declines

- Federal courts may not enjoin pending state court proceedings.

- if state law is unclear and state court clarification of that law could make a fed constitutional ruling unnecessary, then the fed court will abstain

Legislative Power - Congressional Power

There must be an express or implied authority to act

- Generally, no federal police power

Legislative Power - Police Power

No general police power, EXCEPT:

1. M - Military

2. I - Indian reservations

3. L - Lands (federal lands or territories)

4. D - District of Columbia

Legislative Power - Necessary & Proper Clause (Art. 1, Sec. 8)

Congress can adopt all laws that are NECESSARY and PROPER (appropriate) for executing any power granted to any branch of the federal government.

Legislative Power - Taxing & Spending Power

Congress may tax and spend for the general welfare

- taxing and spending may be for any public purpose not prohibited by the Constitution

- most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed

Legislative Power - Commerce Clause

Congress can regulate commerce with

1. Foreign nations

2. Indian tribes

3. Among states

Legislative Power - Interstate Commerce

Congress can regulate

1. Channels of interstate commerce (highways, waterways, & internet)

2. Instrumentalities of interstate commerce and persons or things in interstate commerce

- Instrumentalities are the things that facilitate commerce (trucks, planes, the internet, telephones, etc.)

- Things include stocks or insurance because they travel across state lines

3. Activities that have a SUBSTANTIAL EFFECT on interstate commerce

- e.g. farmers growing wheat for personal use IS interstate commerce but violence against women is NOT.

- Not noneconomic activity - When Congress is regulating noneconomic activity, then a substantial effect cannot be based on cumulative impact across the country

Congress can't regulate inactivity

Legislative Power - 10th Amendment

All powers not granted to the U.S., nor prohibited to the states, are RESERVED to the states or the people.

Legislative Power - Anti-Commandeering Principle

Congress CANNOT compel state regulatory or legislative action

Legislative Power - Anti-Commandeering Principle Exceptions

1. Congress can INDUCE state action by placing express conditions/strings on spending (bribery)

- Express conditions must be expressly stated

- Must be related to the purpose of the program

- Must not be unduly coercive

2. Congress can prohibit harmful commercial activity by state governments

Legislative Power - Section 5 of the 14th Amendment

Congress may legislate to enforce 14th Amendment

- Can't create new rights or expand the scope of rights

- Congress may act only to prevent or remedy violations of rights recognized by the courts

- Laws must be narrowly tailored: Proportional and congruent to wrongs

Legislative power - war and admiralty

power to declare war, raise and support armies, and provide for and maintain a navy

power over admiralty issues

Legislative power - investigatory power

implied power to investigate to secure information as a basis for potential legislation or other official action

legislative power - property

power to dispose of and make rules for territories and other properties of US

- federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other Const provision

legislative power - bankruptcy

power to establish uniform rules, but its a nonexclusive power so states can legislate here too as long as it doesnt conflict with federal law

legislative power - postal

power to establish postal services, classify and place reasonable restrictions on use of the mails but may not deprive any citizen or group of the general mail privilege

legislative power - citizenship, money, patents

power to establish uniform rules of naturalization

power to coin money, fix standards for weights and measures

power to control issuance of patents and copyrights

Congress - Delegation of Powers

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

- Answer choice that a federal law is unconstitutional because an "excessive delegation of legislative powers" is always wrong

- If there is a major question of economic or political significance, a federal agency can only act if there is clear direction from Congress (violation invalidates agency action - doesn't invalidate the statute)

2. Legislative and line-item vetoes are unconstitutional

- Legislative veto is when Congress attempts to overturn an executive action without bicameralism (pass both the House and Senate) and/or presentment (given to President to sign of veto)

- Line-item veto is when the President attempts to veto part of a bill while signing the rest into law

3. Congress may NOT delegate executive power to itself or its officers.

Executive Power

1. Foreign Policy

2. Domestic Affairs

Executive Power - Foreign Policy elements

1. Treaties

2. Executive Agreements

3. Foreign Relations (Recognition/Immigration)

4. War

Executive Power - Treaties

Agreement between the United States and a foreign country, that is negotiated by the President and effective once ratified by the senate

Executive Power - Treaties & Conflict of Laws.

1. State laws that conflict with treaties are INVALID.

2. If a treaty conflicts with a federal statute, the one adopted last in time controls & the earlier must give way.

3. If a treaty conflicts with the U.S. Const., that treaty is invalid.

Executive Power - Executive Agreements

An agreement between the United States and a foreign country that

1. is effective when signed by the President and the head of the foreign nation (no senate approval required);

2. can be used for any purpose

3. prevail over conflicting STATE laws, but never over conflicting FEDERAL laws or CONST.

Executive Power - Recognition Power

It is unconstitutional for Congress by statute to designate the capital of a foreign country

- The President alone can decide

Executive Power - Immigration

President has broad discretion in determining whether to admit individuals into the United States

Executive Power - War Powers

The President has broad powers as Commander-in-Chief to use American troops in foreign countries for any reason. CANNOT declare war

- Question where President deploys troops for an outrageous reasons, best answer is case dismissed as a political question, and second best it is permitted

Executive Power - Domestic Affairs

1. Appointment & Removal

2. Impeachment and removal

3. Presidential Immunity

4. Executive Privilege

5. Pardons

Executive Power - Appointment of Officers

1. Appointment - President appoints ambassadors, federal judges, and cabinet officers and the Senate must confirm them.

- If someone is deemed an "officer," the President is the only one that can appoint them

2. Congress may vest the appointment of INFERIOR officers in the President, heads of departments, or lower federal courts.

- If someone is deemed an "inferior officer," Congress can give appointment power to the president, the heads of departments, or the lower federal courts

3. Congress can not give appointment power to itself or its officers

4. The President may not make recess appointments during intrasession recesses that are less than 10 days

Inferior Officer

Somebody who can be removed by an officer of the United States

Executive Power - Removal of Officers

The President may fire any executive branch official.

Congress may limit the removal power only if

1. Independence from the President is desired (e.g. special prosecutor); and

2. It can limit removal to where there is good cause shown.

3. Congress can NOT limit removal of a single agency head who has substantial discretion

Executive Power - Impeachment and Removal

-The President, VP, federal judges and all officers of the U.S. can be impeached and removed from the office for treason, bribery, high crimes, & misdemeanors.

1. Impeachment requires majority of the house (impeachment does not remove a person from office)

2. Removal requires 2/3 of the Senate

Executive Power - Immunity

Civil: The President has absolute immunity to CIVIL suits for MONEY DAMAGES for any actions WHILE IN OFFICE.

- President does not have immunity for actions that occurred prior to taking office

Criminal: Prez has absolute immunity (while in office and after) for criminal prosecution for actions that are within the president's exclusive Const authority, and presumptively immune from criminal prosecution for any other actions taken pursuant to their official responsibilities

Executive Power - Privilege

The President has executive privilege for presidential papers & conversations, but such privilege must yield to other important government interests.

Executive Power - Financial Records

The President has no immunity to keep his financial records from being subpoenaed by a state grand jury, but if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests

Executive Power - Pardons

President can pardon anyone accused or convicted of a FEDERAL CRIME, except someone impeached by the House of Representatives

- Can't pardon offenses that led to the impeachment

- Only federal crimes

- Not state crimes

- Only criminal liability

- Not civil liability

Federalism

Limits on state and local government power because the existence of a national government and other states

Federalism - Preemption

Supremacy Clause says that federal law, the Const. & the laws and treaties made pursuant to it, are the SUPREME LAW OF THE LAND.

1. Express preemption

2. Implied preemption

3. Intergovernmental tax immunity

Federalism - Express Preemption

If a federal statute states that federal law is exclusive in a field, then state and local laws are preempted.

Federalism - Implied Preemption

Implied preemption exists when

1. Impossibility: Federal and state laws are mutually exclusive (it is not possible for an actor to simultaneously comply with both Federal and State laws)

2. Obstacle: A state law impedes the achievement of a federal objective; or

3. Field: Congress evidences a CLEAR INTENT that federal law will wholly occupy the field (intent that federal law be exclusive in the area) (e.g. immigration)

Federalism - Intergovernmental Tax Immunity

States may not tax or regulate federal government activity (intergovernmental immunity)

- It is unconstitutional to pay a state tax from the federal treasury for federal government activity

- I.e. no tax on federal stores, federal buildings, etc

Federalism - Dormant Commerce Clause

State or local law is unconstitutional if it places an UNDUE BURDEN on interstate commerce

- balancing test

- e.g. Ban on out-of-state baitfish is permissible.

Federalism - Privileges & Immunities

2 Sources

1. Art. IV

2. 14th Amend.

Federalism - Art. IV Privileges & Immunities

No state or municipality may deny citizens of other states the privileges and immunities it AFFORDS ITS OWN CITIZENS without SUBSTANTIAL JUSTIFICATION

e.g. can't require residency to sit for the bar

- Limits states' ability to discriminate against out-of-staters with regard to privilege and immunities of citizenship

Federalism - 14th Amend. Privileges & Immunities

Guarantees a PERSON'S (not citizens) right to travel from one state to another.

- Limited to right to travel

Starting Point for Dormant Commerce Clause and Privileges & Immunities Clause

Does the state or local law discriminate against out-of-staters?

Analysis If the Law Does Not Discriminate

If the state or local law does NOT discriminate against out-of-staters:

- P&I of Art. IV does not apply

- Violates DCC if the law burdens interstate commerce and burdens exceed benefits (balancing test)

Analysis if the Law Discriminates Against Out-of-Staters - Discriminates Out of Staters & Burdens Interstate Commerce

If the law puts a burden on interstate commerce, it violates the DCC unless it is:

1. necessary to achieve an important government purpose; and

2. government must show that no less discriminatory method can achieve its goal

Exceptions:

- Congressional approval - if Congress approves the state or local law, it is then permissible, even if it would otherwise violate the DCC

- Market participant - A state or local government may prefer its own citizens in receiving benefits from government program or in dealing with government-owned businesses (e.g., In-state public college tuition)

Analysis if the Law Discriminates Against Out-of-Staters - Out of State Discrimination & Earning a Living

If the law discriminates against out-of-staters with regard to their ability to earn a living, it violates the privileges and immunities clause of Art. IV unless it is necessary to achieve an important gov't purpose.

e.g. commercial fishing is earning a living but elk hunting is a hobby.

- The law must discriminate against out-of-staters

- The discrimination must be with regard to fundamental right or important economic activities

- The discrimination must be necessary to achieve an important government purpose

- Corporations & aliens cannot use or invoke privileges and immunities.

- If you have a question where a state or local government is discriminating against out-of-staters, and the challenger is a corporation, use only the DCC in your analysis

- If the challenger is an individual, use both the DCC and P&I Clause

Federalism - State Taxation of Interstate Commerce

1. States may not use their tax systems to help in-state businesses preferentially.

2. A state may only tax activities if there is a substantial nexus between the product or activity to be taxes and the state.

- Physical presence not required

3. State taxation of interstate business or companies must be fairly apportioned.

Federalism - Full Faith & Credit

Courts in one state must enforce all judgment of courts in another state if:

1. there was personal & subject matter jurisdiction

2. the judgment was on the merits

3. the judgment was final.

Individual Liberties - Government Action (State Action Doctrine)

1. Const. applies only to government action, not private conduct.

2. Congress can enact statutes to regulate private conduct.

3. Exceptions

Individual Liberties - Statutes & Private Conduct

1. 13th Amend. prohibits slavery (irrespective of gov't/private action) & pursuant statutes prohibit private race discrimination.

- 13th Amend. just prohibits slavery, not race discrimination

- Congress under Section 2 of the 13th Amend. can adopt statutes that prohibit race discrimination

2. Under commerce clause, Congress can regulate private conduct (e.g. Civil Rights act of 1964).

3. Under Section 5 of the 14th Amend., government cannot regulate private conduct, only state and local governments

Individual Liberties - Exceptions

1. Public functions exception

- If a private entity performs a task traditionally exclusively done by the government, the Constitution applies (e.g., company town, holding elections)

2. Entanglement exception.

- If the government affirmatively authorizes, encourages, or facilitates unconstitutional activity, the Constitution applies

Entanglement Exception Examples

1. Courts cannot enforce racially restrictive covenants

2. There is state action when the government leases premises to a restaurant that racially discriminates

3. There is state action when a state provides books to schools that racially discriminate

4. There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech

- Government subsidy by itself is not enough for state action

5. There is no state action when the NCAA orders the suspension of a basketball coach at a state university

6. There is state action when a private entity regulates interscholastic sports within a state

7. There is not state action when a private club with a liquor license from the state racially discriminates

Note:

- If the case involves race discrimination, the court seems willing to apply the entanglement exception

- If the case does not involve race discrimination, the court seems unlikely to apply the entanglement exception

Individual Liberties - Application of Bill of Rights

1. The Bill of Rights applies directly only to the Federal Gov't

2. The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the 14th Amend.

Individual Liberties - Bill of Rights Exceptions

Amendments NOT enforceable against state and local gov'ts:

- 3rd Amend. right to not have to quarter soldiers in your own home

- 5th Amend. right to grand jury indictment in ALL criminal cases

- 7th Amend. right to a jury trial in civil cases

Individual Liberties - Levels of Scrutiny

1. Rational Basis

2. Intermediate Scrutiny

3. Strict Scrutiny

Individual Liberties - Rational Basis

Law is upheld if it is RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT PURPOSE.

- Any conceivable permissible purpose (must not be arbitrary or irrational)

- Challenger has the burden of proof

- Government usually wins

Individual Liberties - Intermediate Scrutiny

A law will be upheld if it is SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENT PURPOSE.

- Government has the burden of proof.

- The court will look only at the government's actual purpose

- Need not be least restrictive means

Individual Liberties - Strict Scrutiny

A law will be upheld if it is NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE.

- The government has the burden of proof.

- Government usually loses

- Court will look only at the government's actual purpose

- Must be least restrictive means

Due Process

1. Procedural

2. Substantive

Procedural Due Process

These are the procedures the government must follow when it takes someone's LIFE, LIBERTY, or PROPERTY.

- What kind of notice and what kind of hearing?

1. Has there been a deprivation of life, liberty, or property?

2. If so, what procedures are required?

Substantive Due Process

Whether the government had an adequate reason for taking away a person's LIFE, LIBERTY, or PROPERTY.

- Usually protects economic liberties or privacy

Equal Protection

Whether the government has an adequate justification for its differences in its treatment of people.

- Focus is on the type of discrimination and level of scrutiny

Procedural Due Process - Deprivations

1. Life (self explanatory)

2. Liberty - Loss of a significant freedom provided by the Constitution or a statute

3. Property - If a person has a reasonable expectation of continued receipt of a benefit, and that expectation is not fulfilled (entitlement is not fulfilled)

- Entitlement: Reasonable expectation of continued receipt of a benefit

(On MBE, answer of "rights/privileges distinction" are always wrong - the new magic word is "entitlement")

Procedural Due Process - Adult Institutionalizing (Liberty)

Notice & Hearing

Except in an emergency, before an adult can be institutionalized, there must be notice and a hearing.

Procedural Due Process - Child Institutionalizing (Liberty)

When a parent institutionalizes a child, there only has to be a screening by a neutral fact-finder.

Procedural Due Process - Harm to Reputation (Liberty)

Harm to reputation by itself is not a loss of liberty.

Procedural Due Process - Prisoners (Liberty)

Prisoners rarely have liberties.

Procedural Due Process - Deprivation Intent

For a deprivation to be unconstitutional, Government must act INTENTIONALLY or RECKLESSLY - negligence is insufficient.

EXCEPTION: In an emergency situation the government is liable ONLY IF its conduct SHOCKS THE CONSCIENCE.

Shocks the conscience = intent to cause harm the victim

Procedural Due Process - Private Harms

Generally, the government's failure to protect people from privately inflicted harms does not violate due process.

Gov has no duty to protect people from privately inflicted harms

When does the government have a duty to provide protection?

1. only if a person is physically in government custody OR

2. If the government literally creates the danger

Procedural Due Process Step #2 - Procedure Balancing Test: What procedures are required IF you conclude there has been deprivation of life, liberty, or property?

Balancing test:

1. The importantance of the interest to the individual

2. The ability of additional procedures to increase the accuracy of the FACT-FINDING

3. The government's interest in efficiency and saving money.

Procedural Due Process - What procedures are required before deprivation of Welfare Benefits?

Notice & Hearing

Procedural Due Process - What procedures are required before Terminating Social Security Benefits

Post-termination Hearing